Which America Do You Want?

Is it of more importance to the community, that innocence be protected, than it is, that guilt should be punished?

Are “due process” and the refusal to torture essential to the America you want? In 2003 the Justice Department sent a legal memorandum to the Pentagon claiming that the President was bound by neither.

the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.

The 81-page memo, drafted by former deputy in the Justice Department's Office of Legal Counsel, John C. Yoo, was declassified and turned over to the ACLU yesterday. The ACLU sought the document under the Freedom of Information Act. Yoo defended the position taken in the memo by saying that it wasn’t based on some novel interpretation of the Constitution: “our legal advice to the President, in fact, was near boiler-plate.”

Not exactly! The top lawyers for the military service were kept out of Rumsfield’s loop. Some did not know about Yoo’s memo for over a year, by which time the Pentagon had instructed the Defense Department to stop relying on it.

Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."

The document is similar, although much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn.

Why were the documents withdrawn? Was it because Rumsfield decided the memos weren’t so “boilerplate” after all?

“This is a monument to executive supremacy and the imperial presidency,” said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. “It’s also a road map for the Pentagon for fending off any prosecutions.”

The “prosecutions” were those that might come in domestic and international courts. The realization that what the memo approved might make U.S. officials vulnerable in international courts that would try them as “war criminals” was probably what made the Secretary Defense decide that this “boilerplate” would not pass muster under serious scrutiny. But the damage by the policy was done.

Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib.

"What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked. "It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone."

Looking Back: The abrogation of “due process” and approving torture as justified by “the terrorist threat” has a familiar ring from the past—from a time when the “threat of Communism” justified denial of due process, and even back to a time when we weren’t yet a country.

Did you see any of the episodes “John Adams” on HBO? The series is based on David McCullough’s biography in an amazing historical coincidence published in the year 2001, the same year as 9/11. This biography has opened a window on two of the key people (John and his wife, Abigail) who played key roles in the founding of this nation.

In 1769, Boston was full of red-coated British troops, sent the year before to keep order as the English Parliament imposed another round of taxes. The atmosphere in the city was volatile and incidents of violence were beginning to erupt. Four American sailors were arrested and charged with killing a British naval officer who had tried to “kidnap” them into the British navy. John Adams defended the sailors and they were acquitted; John became a hero to the people of Boston.

A year later an incident occurred in which a crowd of Bostonians confronted eight British soldiers and began to pelt the hated redcoats with snowballs, chunks of ice, oyster shells, and stones. In the chaos, the soldiers opened fire, killing five of the colonists. Patriots Samuel Adams and Paul Revere portrayed the incident as the slaughter of innocents; it came to be known as the “Boston Massacre.”

It seemed that no lawyer wanted to defend the British soldiers. When John Adams was asked, he hesitated no longer than he had when asked to defend the American sailors. With the political climate as it was in Boston, John was scorned as few ever experience in their lifetimes.

Unlike the HBO version, there were actually two trials, one for the captain and one for the soldiers. In the first, John argued that there was no proof that the captain had given an order to fire and he was found not guilty. The city was enraged. The second trial began immediately afterward. John argued that the tragedy was not brought on by the soldiers, but by the mob. John argued that the soldiers should be acquitted because they acted only in self-defense.

Without clear and compelling evidence, Adams argued, it was better that guilty persons escape unpunished than that one innocent person should be punished. This is the way he put it in his summation to the jury: “The reason is that it’s of more importance to the community, that innocence be protected, than it is, that guilt should be punished.”[1]

After two and a half hours the jury came back with verdicts, acquitting six and convicting two of manslaughter. John was vilified in the press and lost over half his practice; but his insistence on fairness and due process won him new respect. In fact, John was one of a few brave people who made possible the Declaration of Independence and the establishment of the United States and went on to become the second President of the United States.

To hear our President speak, you would think that we have never faced a national danger as dire as that posed by “terrorists.” That can be said easily by one who hasn’t a clue about what it was like in Boston in 1770. Later as President, John Adams would acquiesce to actions by Congress that he would regret, but those actions do not dim the keenness of his conscience and courageous action he took to preserve the rule of law at a critical moment in our history.

Which America do you want for your children?

- Milo

[1] David McCullough, John Adams (New York: Simon & Schuster, 2001) p. 68.