As I move forward with the discussion of Benjamin Wittes' Law and the Long War initiated by bloggers Thomas Nephew and the Talking Dog, Mr. Wittes' article in the Washington Post on the President's efforts to close the concentration camp at Guantanamo Bay caught my eye. In general, I find much to disagree with in Mr. Wittes' approach as I dip into his book, but I do think that he makes an important point in his recent article.
Mr. Wittes' comment that the President is enjoying a Dick Cheney moment by deciding to close Guantanamo through unilateral executive action is a cheap shot. Dick Cheney pursued a relentless effort to aggregate greater power to the executive in order to pursue an unlawful campaign of terror, murder, torture, and domestic espionage. While I agree with Mr. Wittes that it would have been preferable for Mr. Obama to have acted with Congressional cooperation, the exercise of executive power on a mission of mercy, however bad the precedent, is just not the same as its exercise for Dick Cheney's unabashedly murderous ends.
Mr. Wittes is right about one thing, however. Our approach to the treatment of prisoners is now a hopeless muddle; the tenuous structure of international human rights law shattered beyond recognition by the reckless adventurism of President Bush and his cowboys. By going to war on false pretenses, President Bush and his supporters squandered the moral authority bestowed by the unprovoked attack on 9/11, sapped American credibility, and sent thousands of young men, women, and children to needless early deaths. The Administration then used its unjust and unnecessary war to bootstrap a ruthless attack on American Constitutional rights by engaging in torture, open-ended detention, and hitherto unprecedented surveillance. As someone who works two blocks from the White House, if I die in the next terror attack I pray that I will die a free man in a free society, not the Orwellian Republic that Bush has initiated and Obama seems determined to perpetuate.
I actually agree with Mr. Wittes that the appropriate treatment of prisoners is one thing our national debating society, the Congress, might be able to get right, if it had strong and principled leadership from the White House. Frankly, I would wish for a strong reassertion and expansion of the principles of the Geneva Convention, coupled with an equally strong vindication of the Fourth and Fifth Amendments. I am skeptical that this could be accomplished in this age of Chicken Little-ism in the face of the threat from the cave dwellers of Afghanistan. However, the Congress has, with strong leadership from the White House, occasionally risen above its general level of moral cowardice, as with passage of the Civil Rights Act of 1964, Perhaps it could do so again, and prove Mr. Wittes right in his contention that questions of prisoner treatment should not be left in the first instance to the Courts.