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"No Blank Check For Bush"--A Commentary by Prof. Jack Balkin

(This essay was originally published in the May 16, 2004, edition of the Hartford Courant.)

No Blank Check For Bush
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment

The torture of Iraqi prisoners at Abu Ghraib has shocked the country. But an equally important revelation comes from the same Red Cross report that originally detailed the abuses: Some 70 percent to 90 percent of the people detained by the military, the Red Cross estimated, were innocent of any wrongdoing. They were simply swept up in the passion of war.

These revelations are important because the U.S. Supreme Court is considering a group of cases that will define the powers of the president in a post-9/11 world. They involve two U.S. citizens held in a military brig in South Carolina and detainees at the U.S. naval base at Guantanamo Bay, Cuba, who are contesting their imprisonment.

The Bush administration claims that it has the right to declare anyone - even a U.S. citizen - an "enemy combatant," beyond the protections of the Constitution's Bill of Rights and the Geneva Conventions, which specify the minimum levels of decency that nations must afford prisoners of war. In fact, the administration argues, once it has declared people enemy combatants, detainees have no right to U.S. courts to prove their innocence, or even to protest their mistreatment. The administration can hold them incommunicado as long as it likes.

Last month, the administration told the Supreme Court that the justices should keep their hands off these cases. Trust us, it said. We would never hold anyone without good reason, and we would never torture a prisoner. Those who claim otherwise are hindering America's victory in the war on terror.

These confident assurances ring hollow now that we know that the vast majority of detainees in Iraqi jails were probably innocent, and that American soldiers systematically mistreated them. In fact, reports have been surfacing for some time of prisoner abuse at Guantanamo as well. The only difference was that no pictures emerged at Guantanamo to force Americans to confront what they did not want to believe: that our own countrymen could treat other human beings with such inhumanity. Terrorists have no concern for human dignity, no respect for innocent human life. We have not wanted to believe that American soldiers could come so close to that way of thinking.

The Supreme Court did not know of the revelations about Abu Ghraib when the administration argued before it last month, and the administration did not volunteer the information. Indeed, when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement whether judicial review should be foreclosed even in cases of alleged torture, Clement dodged the question. "Our executive," he insisted, doesn't engage in torture. "Judicial micromanagement" was inappropriate in wartime; "you have to trust the executive."

In fact, the Justice Department did know about - and approved - the administration's "stress and duress" techniques, like forcibly holding prisoners under water and making them believe that they would drown unless they cooperated. But conveniently, the government has defined the concept of "torture" to exclude these techniques so that it can technically claim that it "tortures" no one. Perhaps even worse, it has placed prisoners in the hands of other governments with the expectation that even more aggressive techniques will be employed, a practice that also violates the Geneva Conventions. All of this was kept from the court at oral argument.

The Justice Department may not have been aware of the Red Cross report or the military's investigations into prisoner abuse in Iraq. But it knows now. And the question Justice Ginsburg asked can be dodged no longer.

The administration, and particularly Defense Secretary Donald Rumsfeld, have been cavalier about American obligations under international law, including the Geneva Conventions. International law and accountability, we are told, are unnecessary because, unlike all of the other countries in the world, we are Americans, and we naturally believe in human rights and the rule of law. We need no special incentives to be good. But if history teaches us anything, it is that when governments, no matter how well they think of themselves, decide to free themselves from constraints, they become unconstrained, and when they refuse to make themselves accountable, they abuse their power. The only thing that has been lacking until now has been the proof of what everyone should already have known: that unchecked power leads to hubris, hubris leads to corruption, and corruption leads to violations of human rights.

Americans are proud of their devotion to democracy, human rights and the rule of law. But these cannot exist without institutional preconditions: They cannot exist if government officials insist on complete secrecy, mock international covenants and refuse to allow their actions to be tested and constrained by law.

This administration wanted secrecy. It wanted to be free of legal constraint. It wanted to do whatever it wanted whenever it wanted without ever having to be called to account for it. Now, at Abu Ghraib, it is reaping what it has sown.

The administration demands our trust. But trust is a two-way street. This administration has proved it cannot be trusted. It has arrested the innocent on baseless charges; its armies have tortured and abused human beings. Now it has the audacity to demand even greater powers.

We should not surrender the rule of law so easily. We should not give the executive a blank check.

Jack M. Balkin is Knight Professor of Constitutional Law at Yale Law School.