Babel: The multilingual, multicultural online journal and community of arts and ideas

By Anna Cherkasova

 

“Those who sacrifice liberty for security

deserve neither.”

Benjamin Franklin

 

At their country club, my friend Clint and his golf partners had an argument about habeas corpus. They were debating whether Guantanamo prisoners have the right to ask for federal court review of the evidence against them. Clint was arguing that they do; his golf buddies were convinced that they don’t. Finally Clint got up and exclaimed, “There is a price to be paid for freedom, you know!” His buddies nodded in return, “You’re right, there is.”

“A price for freedom” was a winning argument for both sides, but for each that price was different.

For Clint it meant that we, Americans, have a privilege to live in a free world largely because our founding fathers when writing the Constitution made sure that the government is unable to abuse its executive power and to deny the self-evident rights of life, liberty, and the pursuit of happiness. We the people, therefore, have an obligation to follow the Constitution no matter how special the circumstances are. We have to protect these human liberties even if in some cases it seems that it is easier and safer to restrict them. Therefore, Clint thought, habeas corpus has to be granted to prisoners of Guantanamo, their human and civil rights have to be respected, and we have to show to the world that America, despite current challenges, is still a universal model for freedom.

For Clint’s friends, on the other hand, “a price for freedom” meant that there is a tradeoff between liberties and security, and sometimes security has higher priority. Desperate times, they would say, require desperate measures. Therefore habeas corpus should not be granted to Guantanamo prisoners, surveillance has to be legalized, and torture should be permitted. We are in a war against terrorism.

Their argument makes very little sense, since, according to its logic, the price that must be paid for freedom is freedom itself. It reminds me of the archaic medical practice of bloodletting, when in order to save a patient’s life, doctors would bleed this patient to death. Surprisingly, this medical treatment was considered effective and had been practiced for nearly 2000 years. Is it going to take us that long to realize that the bloodletting of freedom in order to save freedom just like letting a person bleed to death in order to save this person’s life is harmful and dangerous?

Ironically, the day after Clint and his friends had their discussion at the country club, the Supreme Court justices had their own, very similar, discussion in the courtroom, and it, too, came down to “the price for freedom” argument which, again, both sides thought was in their favor.

Justice Scalia, on the one side, argued that the court’s decision in favor of granting habeas corpus rights to Guantanamo prisoners “will make the war harder on us… It will almost certainly cause more Americans to be killed.”

Justice Kennedy, on the other side, declared “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Even though more sophisticated, it still was a very similar argument to the one Clint and his buddies had at the country club. The judges had to decide whether the “desperate times require desperate measures” justified abusing human rights or whether these times provide us with an opportunity to overcome challenges, strengthen our confidence in the Constitution, and show to the world that America is indeed the land of the free.

With the ruling 5-4 for the extension of habeas corpus to Guantanamo prisoners, the Supreme Court agreed with the latter. The verdict confirmed something that many Americans already believed to be true: the Bush administration misused executive power under the guise of protecting freedom by designating people, including American citizens, “enemy combatants” and holding them indefinitely without specific charges. As of today, approximately 800 so designated are kept at Guantanamo Bay.

Not surprisingly, Senator McCain, the Republican Party presidential nominee, came out with harsh criticisms regarding the verdict; he called the Supreme Court decision “one of the worst in the history of the country.”

Ironically, before he became the Republican nominee, McCain held a different, more nuanced, position. He once suggested that Guantanamo prisoners “have rights under various human rights declarations. And one of them is the right not to be detained indefinitely.” He also refused to sanction torture, and, in admirable fashion, insisted that we, Americans, no matter how hard it is, have to respect the rights of even our enemies because “this isn’t about who they are. This is about who we are.”

Perhaps, before McCain became the Republican nominee, he would have found the Democratic candidate’s position on terrorism more appealing than President Bush’s. Barack Obama advocates a Constitution-based approach to terrorism. “That principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process,” Obama explained, “that’s the essence of who we are.”

He later continued, “We have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims.’”

To reinforce this point, Obama is willing to protect the right to a fair trial for Osama Bin Laden, citing the Nuremberg trials of Nazi war criminals after World War II as an excellent model for bringing to justice people who committed heinous acts.

Rudi Giuliani, a McCain supporter, accused Obama of not understanding the severity of terrorist threat. We are a nation at war, after all, and we have to do all we can to protect our freedom (even if it requires giving up this freedom). “I describe the difference as one being on offense and the other wanting to be on defense,” said Giuliani. He added that it is wrong to take a “criminal justice” approach to combating terrorism, and it is “startling” that “several people in Obama camp” believe that “if bin Laden were taken to Guantanamo, he would be given habeas corpus rights.”

Not long ago Giuliani himself was a proponent of a constitutional approach to terrorism. After the 1993 New York Trade Center bombings, for example, he said: “New Yorkers won’t meet violence with violence, but with a far greater weapon - the law.” Back then he supported a criminal justice approach to combating terrorism.

The truth is, the argument that somehow the War on Terror justifies giving up our liberties in order to protect our liberties does not only makes zero logical sense, it also does not withstand the test of historical comparison. It is fair to say that the War on Terror is not nearly as bad as some of the wars we’ve faced.  It is far less dangerous than the Cold War. It is nowhere near the severity of the Civil War. It certainly cannot be compared to either one of two World Wars. Yet, for some reason, our government and its supporters think, and wish to frighten us into agreeing, that somehow this war justifies violations of human rights including denial of habeas corpus to Guantanamo prisoners.

Clint’s buddies as well as four justices, along with President Bush, most of the elected Republicans, and a few elected Democrats seem to think that we live, not in America, but in some other country, where Franklin’s words “those who sacrifice liberty for security deserve neither” sound out of touch and place. In this country people are more than willing to sacrifice some liberties in exchange for some security and pay Bush’s definition of a price for freedom, which, in reality, is a road to serfdom.

America has a different form of government and a different understanding of a price that has to be paid for freedom. Our founding fathers, in order to prevent America from becoming one of those countries that let freedom bleed in order to save it, installed a system of checks and balances designed to withstand the most severe challenges and disastrous policies. On June 12, 2008, the Supreme Court reinstated habeas corpus rights to Guantanamo prisoners, overturning the decisions by both executive and legislative branches. The system put in place almost 250 years ago worked. With the decision 5 to 4, however, we came awfully close.

In Thornton Wilder’s words, we got away, again, by “The skin of our teeth.”

This entry was posted on Thursday, July 10th, 2008 at %1:%Jul %p and is filed under Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.