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Behind Closed Doors

No one — no matter how virtuous or kind — can be trusted with absolute, unreviewable power over other human beings.


The moral basis of our intervention in Iraq is in ruins: We found no weapons of mass destruction; we found no Iraqi ties to international terror; and the freedom and democracy we promised the Iraqi people are called into question by tactics of torture and abuse worthy of the Baathist regime we displaced. It is difficult to find even a spark of hope in the deepening gloom.

Yet in the midst of the darkness, it is possible that what Abraham Lincoln called “the better angels of our nature” have intervened to show us the difficult way out of this national disaster. The hideous news from Abu Ghraib, by a coincidence that would seem ridiculous in a work of fiction, burst upon the nation at a fortuitous moment — a time when our Supreme Court is pondering whether to write into law the principle that an American president may, with the stroke of a pen, imprison American citizens and foreign nationals without any guarantees of due process.

Our nation’s Founders fashioned these guarantees out of bitter experience to protect us from tyranny and our government from a slide into dictatorship.

“To see what is in front of your nose,” George Orwell once wrote, “takes a constant effort.” The connection between Abu Ghraib and the cases pending in the Supreme Court is so obvious we may overlook it.

Already our leaders are spinning the revelations with either the old “bad apples” excuse — “the shameful actions of a few,” said White House spokesman Scott McClellan — or even worse the non-denial denial of a Hollywood starlet caught shoplifting. “What took place in that prison does not represent the America that I know,” President Bush primly told an Arab TV station.

Those who embrace such easy explanations are deliberately turning away from the central lesson of American history. The entire genius of American democracy lies in the principle that no one — no matter how virtuous or kind — can be trusted with absolute, unreviewable power over other human beings.

When the fog of politics and war have cleared, I predict, the criminals of Abu Ghraib will be revealed as very ordinary men and women who joined the military to serve and protect their country and bring honor to our democracy; men and women who lost their moral compasses, as others have done throughout history, when they were put in a position where no one was watching to keep them honest.

Since the Sept. 11 attacks, American officials have repeatedly asked us to trust our government. Federal officials need the authority to order secret surveillance without meaningful court review, we have been told. Military authorities must be allowed to detain those captured in Afghanistan without a hearing — or even any meaningful international inspection of military detention facilities.

The president can order any American citizen — whether arrested abroad or here at home — held indefinitely without access to a lawyer or a hearing in front of a neutral magistrate. In arguments in the Guantanamo case last month, government lawyers told the Supreme Court that no civilian court, even the highest court, could ever exercise jurisdiction over the government’s treatment of prisoners held incommunicado at the U.S. base there — no matter whether the United States is at war or not.

Deputy Solicitor General Paul Clement solemnly told the Court:

“The interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake.”

Perhaps, with the news from Abu Ghraib, the justices will be moved to consider the willed blindness of that argument. In this country, we do not trust interrogators to decide guilt or jailers to specify due process — not because they are evil, but because power is never to be left to its own devices when human beings are helpless before it.

The Framers learned that lesson from the conduct of the King’s soldiers; the founding generation learned it again during what Jefferson called “the rein of witches” sparked by the Alien and Sedition Acts; later generations learned it again during the “Red raids” of 1919, the internment of innocent Japanese in 1942, the Cold War persecutions of dissenters, the covert FBI campaigns against the civil rights and anti-war movements. Ironically, Bush even cited these lessons to explain why no one has yet been punished. “We have a presumption of innocent until you’re guilty in our system,” he told Al-Arabiya. One wonders whether his words were relayed to Jose Padilla.

Power often begins with good intentions. But hidden from law, it swiftly turns arrogant and brutal — not sometimes, not usually, but always.

“Democracies die behind closed doors,” Judge Damon Keith of the 6th U.S. Circuit Court of Appeals wrote in 2002. Democracies die inside secret detention camps, as well, and in military brigs and interrogation rooms and anywhere ordinary people are given power without accountability. They also die when the powerful plot wars in secret and lie about their costs in treasure and in blood.

As a people, we know this; we have learned it the hard way. We have written the lesson into law and we have taught it to the rest of the world. And yet, once again, our leaders are singing the siren song of trust and secrecy, and our judges may be tempted to listen.

“If men were angels, no government would be necessary,” James Madison warned us at the dawn of the republic. Abu Ghraib teaches us once again that we are not angels, and only the law’s engines of distrust keep us faithful to our history and our ideals.

If the news from Iraq reminds us of this lesson before we blunder further at home and abroad, perhaps our better angels are, in some mysterious way, at work again. S

Garrett Epps is professor of law at the University of Oregon and author of “To an Unknown God: Religious Freedom on Trial.”

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