Columnist: Justice is not blind obedience

Columnist: Justice is not blind obedience
By Clive Crook
Copyright The Financial Times Limited 2007
Published: August 29 2007 19:27 | Last updated: August 29 2007 19:27


Alberto Gonzales is assured of his place in history. When he at last steps down as US attorney-general next month, it will be as the most reviled and ridiculed holder of that office in recent memory. With Democrats cheering his departure and Republicans sighing with relief, it may seem outlandish to say that the full measure of his failure is insufficiently acknowledged, but this is true.

Mr Gonzales was President George W. Bush’s principal legal facilitator in a string of ill-conceived efforts to abridge civil liberties and undermine the country’s constitutional checks and balances. Those efforts have drawn furious criticism. But less attention is paid to what the administration has in fact achieved: not so much a tyranny in the making as a paralysing legal vacuum. Six years after the attacks of 2001, the US has no real consensus and no well-formed legal policy on fighting the “war on terror”.

The heavy political loading of that term is itself part of the Bush-Gonzales legacy. The administration’s critics deplore the idea of a “war on terror”. They argue that it misdirects the government’s priorities and supports infringements of liberty and other wartime exigencies that are simply not justified – and Mr Gonzales did all he could to prove them right. The correct legal framework for dealing with a post-9/11 world is, in the view of these critics, much the same as it was pre-9/11. The ordinary criminal law suffices.

Opposing that, the administration made no attempt to weigh what it saw as the urgent new demands of national security against constitutional liberties and protections. If this is a war, it is apparently one without limits. To fight it, the White House has repeatedly pressed for extraordinary powers – to torture and indefinitely to detain terrorist suspects, to wiretap without warrants, to shield itself from judicial or congressional scrutiny, and more. In some ways (on torture, for example) it has sought powers that previous governments did not seek even during the second world war, or during the cold war with the Soviet Union, when the possibility of nuclear conflagration was real.

The debate in the US oscillates between these two polar positions: that any new infringement of liberty is an outrage; and that no infringement is too costly in view of the risks that the country now confronts. The law, which one would hope to find occupying a considered middle ground, is in disarray.

In June, for instance, in only one of many such setbacks for the White House, a federal appeals panel ruled against the administration’s attempt to deny judicial review to a suspected al-Qaeda member who has been held in a military prison for four years. The panel rejected the administration’s position unanimously, but two of the three judges went further and said that suspected terrorists could not be held for more than a week without being charged. The prisoner, they said, was not an enemy combatant, as the administration had claimed, because he was neither formally affiliated with an army at war with the US, nor captured on a battlefield. In other words, he was just an ordinary civilian and the ordinary rules should apply. (The Justice Department has asked the full court to revisit the case.)

It is harder to say which is scarier: the existing law (on the panel’s majority interpretation), which so ties the hands of investigators, or the administration’s position, which is that people who might possibly be terrorists can be indefinitely “disappeared”. Other countries have found a middle way that recognises, on one hand, both the extraordinary threat that modern terrorism can pose and the difficulty of securing evidence as promptly as would be expected in an ordinary criminal case, and, on the other, the need for judicial scrutiny. Moderately extended periods of detention without charge, subject to judicial review, seem to balance those factors reasonably. Incredibly, six years after 9/11 the US still needs a new law to settle the point.

The administration has failed to offer calm, centrist leadership on the issue. Congress has failed too, showing little appetite of its own for clarity or good policy. The change from Republican to Democratic control last November appears to have made little difference. Especially striking is the fact that few Americans are even discussing how the balance should be struck. Arguments over what is legal or illegal, constitutional or unconstitutional, rage endlessly. Almost no attempt is made to find agreement, suited to these dangerous times, on changing the law so that it is prudent and just.

The blame lies mainly with the administration – and, inside the administration, with Mr Gonzales, latterly its most senior legal officer. Instead of leading the search for compromise, the government’s chief lawyer applied himself to the president’s drive for virtually unrestrained authority to override laws on torture, on detentions, on warrantless surveillance and the rest, all in the name of the “war on terror”. In my view, the US is indeed at war with al-Qaeda. I have no quarrel with that term. But there are limits to what it justifies. By failing to recognise them – by failing to tolerate, let alone invite, discussion on the point – Mr Bush and his obedient attorney-general have blocked the legal reform that the US so badly needs.

Send your comments to clive.crook@gmail.com