Hamdan is Free.
Now What About the Rest of Us?

It is difficult to muster much more than indifference to the fate of the Salim Hamdan, the alleged driver for Osama bin Laden who was freed from the prison at Guantánamo Bay last week and sent back to his native Yemen. Apparently, the news media shared this view, as the release of even one of the better known Guantánamo detainees barely merited a mention when it happened. Whether he rots in an American "detention center" or a Yemeni dungeon, or is even set loose upon the world, seems to be of little consequence to the vast majority of Americans.

What ought to be of profound consequence, however, is the implication of this shameful episode for civil rights at home and human rights abroad. How terrible for us as a nation that the sexual peccadillos of a certain former president riveted the attention of the body politic for years on end, prompting certain members of the chattering classes to wonder aloud, "Where's the outrage?", while the systematic subordination of the Constitution and the Bill of Rights by the very next administration has seldom aroused sufficient passion to make it to the front pages of our newspapers. Those who routinely pervert the tenets of the Christian faith for political ends by espousing "values" and "morality" could not have made the hollowness of their souls more plain by their apoplectic reaction to the first trifling set of circumstances and their sneering callousness at the authoritarian evil of the latter.

As a child born of the generation that defeated fascism in Europe, raised under the toxic cloud of the Cold War and witness to the struggle for Civil Rights in our own backyard, I acquired nearly from the womb a fear and loathing for the brutal exercise of arbitrary power. Like all people of conscience, freedom is my patrimony. Any depiction in a book or film of a late-night knock on the door by the secret police, and the subsequent arrest, violent interrogation, detention without charge or summary execution, filled me with the kind of rage that drives more hot-headed youth to join revolutions. From the Count of Monte Cristo to Aleksandr Solzhenitsyn, the absence of justice for the powerless has self-evidently been the most common abuse of human rights in the history of our species, and the defining characteristic of all regimes of absolute power.

That most decently educated and reasonable young Americans did not run off to join the Shining Path or the Red Brigades owed less to a lack of conviction than to an accident of birth. Being a natural-born citizen of the United States automatically conferred immunity against these atrocities, provided that one was white and not very poor. Even so, the gradual legal emancipation of American blacks during the last half century, and the provision of defense counsel even to the destitute (inept and inadequate as such counsel may often be) at least left an impression of progress. These measures have been invariably too slow and too late, but they created an illusion that America indeed stood apart from the other nations of the world in its ability to right the wrongs of the past and to truly stand for something nobler than the acquisition of wealth and power.

Until 9/11. Some Americans no doubt slept more soundly knowing that the likes of Dick Cheney, John Ashcroft and Donald Rumsfeld were manning the controls of the ship of state in the aftermath of that horrid day. They may have been relieved to realize that they had elected zealots to protect them from the zealotry of our enemies. And even if they had known that one of the vice president's most senior advisors kept a dog-eared copy of the Constitution in his breast pocket, not to guard against the erosion of civil liberties in the face of mortal peril, but for the express purpose of figuring out innovative ways to circumvent them, they would likely not have been bothered. And if they had been reminded that the President swears an oath to "preserve, protect and defend the Constitution of the United States", and not, as Mr. Bush has constantly reminded us for the last seven years, to protect the lives and property of the American people, they would have no doubt wiped the thought from their minds as a needless abstraction. Torture, rendition, Abu Ghraib, Guantánamo — an unpleasant business, surely, but we face an exceptionally evil enemy. In any case, we're talking mostly about foreigners, aren't we, and what rights do they have?

This notion that Constitutional rights apply only to American citizens is a legalistic fantasy concocted by a small coterie of Bush Administration officials and their arch-conservative allies on the Federal bench. It is, moreover, an example of moral torpor almost unparalleled in its smallmindedness. Do the Supreme Court Justices who have voted time and again to uphold the government's jaundiced legal arguments in favor of eternal detention and the deliberate infliction of physical pain really believe that when Jefferson penned the words "endowed by their creator with certain inalienable rights" that this creator intended to shine his countenance only on those born within the boundaries of the 13 original colonies of the United States of America?

The justification for this brand of moral backwardness finds its shrill voice in the tribalist nonsense of American "exceptionalism" and the heroic triumphalism of American militarism. Like every other people who have ever inhabited the Earth, there are many good and decent people among us, but many miserable excuses for human beings, too. The country that produced Thomas Paine and Martin Luther King also gave birth to Joseph McCarthy and George Wallace. When politicians spout such silliness as, "The American people are a generous people", are they suggesting that among the nations of the world Americans are uniquely generous? Show us the evidence. Perhaps they should consider that our intelligence services had no trouble finding men (and probably women, too, if the Abu Ghraib photographs are any guide) living amongst us to carry out the abuse and torture of prisoners. I have always been unsure about Hannah Arendt's idea of the "banality of evil", but when it happens to your own people, it surely gives some currency to the very Christian principle that both good and evil reside in all of us. The torturer in question is not some caricature of a hideous Nazi monster, not some brainwashed Soviet apparatchik, but the guy down the street who drives his kids to school and mows the lawn on weekends. So much for exceptionalism.

To borrow from Edmund Burke, many good people have done nothing to prevent the evils committed by our own government because, presumably, they have not felt that their rights have been abrogated. No doubt there were many loyalists of the Third Reich and the Soviet Union who lived a comfortable life, who never happened to run afoul of authority and whose close friends and relatives were never arrested by the Gestapo or the KGB, who also felt secure in the belief that their government was protecting them. This is not an argument for moral equivalency: today's America is not a totalitarian state by any stretch of the imagination, notwithstanding the arguments of anarchists and anti-globatization hysterics. This is, plain and simple, an argument against the slippery slope: today's free societies, America included, bear many similarities to the peaceful, sophisticated Western European democracies of the 1920s, Germany and Austria included. They, too, were oblivious to the economic collapse that would lay waste to their industries and leave the door open to despotism. History has proven beyond a shadow of a doubt that it takes little for an orderly country to collapse into chaos, or for a seemingly harmonious society to descend into brutality. Consider the catastrophic breakup of Yugoslavia, or the Rwandan genocide, both a mere 15 years ago. Every nation has its own ethnic, racial, religious or economic fault lines. What series of events will trigger the downward spiral into mayhem, and the unspeakable inhumanity that accompanies it, is particular to each case and never entirely foreseeable. That is why the early signs of intolerance and authoritarianism must be exposed aggressively and snuffed out without hesitation whenever and however they first appear. An overreaction on the side of liberty is incomparably less harmful in every imaginable way than one on the side of tyranny.

What is clear is that the erosion of civil rights is a self-inflicted wound, a consequence of a conservative government's overreaction to a terrorist threat. The threat is real and very serious, but it has never risen to level of existential threat posed by the Soviet enemy and its vast nuclear arsenal. American cities are not at risk of sustained aerial bombardment, its coasts and borders not vulnerable to full-scale invasion. The lost lesson of 9/11 is that terrorist attacks, even enormous and well-organized ones, are insufficient to put a major, lasting dent in our society, economy or body politic. Unless, of course, we commit the injury to ourselves and do the terrorists' work for them. It has been our profound misfortune to have such pig-headed and reactionary people running our government at a time of such peril. It has always been a mystery to me why politicians who claim to despise government should fight so hard to gain control of it, and then to expand, rather than limit, its powers. Sheer hypocrisy would explain it, perhaps, but the cowardice and complicity of Congress, the news media and much of the voting public cannot be brushed aside so easily. The tendency for apologists for the Bush Administration's "war on terror" to denounce as traitors (as defenders of power always do) anyone who raised a voice of protest against the multiplying injustices perpetrated by the government, has probably cowed some into submission. Naked appeal to patriotism is a form of flattery and bullying that many people do not have the wits to resist, but while flattery and bullying may win votes, it cannot win arguments.

All Americans who have felt horror and shame at this course of events, and genuine outrage at the accusation of treason leveled against them, can paraphrase a sound-bite that gained popularity in the election cycle just ended: I did not betray my country; my country betrayed me. We need not care about the rights of the detainees at Guantánamo Bay, but we ought to care deeply about our own rights, and the rights of our fellow citizens, and the human rights of innocent people everywhere. Civil libertarians are frequently denounced for defending unpopular causes precisely because this essential democratic principle is so often misunderstood: there can be no exceptions to the application of Constitutional rights. If the government has the power to detain even one man without due process, then it has the power to detain anyone. If it hasn't happened to you or someone you love, that is your good fortune, but random justice is neither comforting nor even justice.

We have stepped back from the precipice a number of times before — in the Civil War, in the red-baiting of the 1950s — and each time avoided a descent into tyranny or dissolution. And each time we did so, the lesson was the same: the only country or movement strong enough to defeat us is ourselves. The threat from fascism or communism was never as great as the threat from Americanism, from cherishing the mistaken belief that we can ultimately do no wrong in the faithful pursuit of our interests and security. But if we adopt the brutal methods employed by the enemy, then we surrender the very decency and liberty that make the nation worthy of defending.

As a people, we are as human and flawed as any other; it is our system of government that makes us exceptional. It may be difficult to accept that the only interest worth defending at the cost of our lives is a piece of paper, but the Constitution is the only thing that stands between us and a country that no one would want to live in. Perhaps Salim Hamdan and his fellow detainees deserve their fate. If so, let us find a just and legal way to imprison them for as long as we have to. Failing to take the time and care to distinguish truly dangerous killers from hundreds of others, many of whom we have already quietly let go, is a miscarriage of justice that has done more harm to our hallowed rights and freedoms than any terrorist attack that we could imagine.

November 29, 2008