One cold February morning in 2008, I was reading my worn copy of the U.S. Constitution -- something I do every year or so -- when I happened to turn on the radio for the eleven o’clock news. A CBS reporter said that the American government had just announced that it was seeking the death penalty for six men accused of planning the September 11, 2001, attacks on Washington, D.C., and New York City, which killed nearly 3,000 people. The men were being imprisoned at Guantanamo Bay, Cuba, and would be tried by a secret military tribunal. They’d be given neither the rights of criminal defendants in American courtrooms nor the protections granted under the Constitution. Their leader, Khalid Shaikh Mohammed, had confessed to these charges after being subjected to water-boarding: simulated drowning until a suspect breaks down and starts to talk. Michael Mukasey, the U.S. Attorney General and the nation’s highest-ranking legal official, had refused to acknowledge during questioning by Senators that water-boarding was torture and therefore illegal. He did admit, however, that it might be torture if it were being done to him.
A few days before this death penalty announcement, Vice-President Dick Cheney had vigorously defended water-boarding and other harsh interrogation techniques at a Republican fundraiser in Pennsylvania, calling them a “tougher program for a very few tougher customers.” Right after declaring its intention to kill the six men, the Bush Administration ordered its diplomats around the world to explain this decision by comparing it to the trials of Nazi leaders at Nuremberg after World War II, a very weak comparison.
It would take a while for the full impact of the news bulletin to hit me. In the meantime, I returned to studying the Constitution. The small pamphlet in my hand spelled out, in Article V of the Bill of Rights, that defendants accused of crimes in the United States could not be “deprived of life, liberty, or property without due process of law.” Article VI stated that in “all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed.” The Nuremberg trials had been open so that the world could see and hear the evidence presented against the Nazis, and try to learn something from the conditions and people who created the Holocaust. The Guantanamo proceedings would be closed.
Article VIII said that no “cruel and unusual punishment” should be inflicted on the accused. The men on trial at Nuremberg had not been tortured into confessing about the war crimes that made them responsible for at least 20 to 30 million deaths. Not to mention the wounded and damaged. At age 24, my father, a bombardier pilot over Germany, was shot down and then held as a prisoner of war in that country for almost a year. He came home with a dislocated hip and permanently shattered nerves. On his death bed at 83, he was still mumbling about following the orders of his prison guards who told the captive soldiers to line up and march in the snow. No one at his POW camp was tortured by the Nazis to reveal information about the American armed forces, and throughout his life, my father opposed and despised these interrogation techniques on prisoners of war.
After the German surrender in 1945, some of the Allies called for the immediate execution of those in the Nazi high command, but the U.S. stood firm against this and prevailed. Our nation believed in public courtrooms and due process for the very worst offenders on earth. The guilty should be convicted by testimony and evidence, not emotion. Once the German leaders had been convicted at Nuremberg, several were put to death and the case was properly closed. The American victory in World War II was complete. We’d not only defeated the Axis powers on the battlefield, but adhered to our principles in pursuing justice for the conquered.
In 1996, the U.S. reaffirmed its commitment to international law by passing the War Crimes Act, making it illegal for Americans -- including the country’s civil and military leaders -- to violate the standards set forth in the Geneva Conventions for conduct during wartime. Torture and death for criminal suspects or POWs were outlawed. But in 2002, Bush Administration lawyer Alberto Gonzales wrote a memo to his boss showing how the U.S. could sidestep the 1996 law, as well as the Constitution, by allowing Americans to engage in various forms of torture, such as water-boarding. The memo helped further the Bush agenda and the president later made Gonzales the new Attorney General, making him the nation’s top legal official. Then in 2006, the administration drafted amendments further weakening the 1996 War Crimes Act, so that political appointees, CIA officers, and military personnel could not be prosecuted for “humiliating and degrading treatment” of suspects.
The confessional statements from Khalid Shaikh Mohammed about September 11, 2001, obtained during torture, would now be used in a secret courtroom to establish the truth behind the most heinous crime ever committed on American soil. Our national history -- a non-partisan issue -- was being sealed away from us, one piece at a time. How strange that I’d heard this CBS news report while reading the words of those who’d founded our nation. Their commitment to open and balanced government, along with their efforts to check official abuses of power, flowed through every passage in the Declaration of Independence and the U.S. Constitution. We were, as John Marshall, our longest-running Supreme Chief Justice, famously said, “A government of laws and not men.”
Turning off the radio, I closed the document in my hand and peered out the window at the chilled winter sky, unable to shake the haunting sense of what it now felt like to be an American citizen.