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Stain of Guantanamo

By Brent Budowsky
July 22, 2006

Editor's Note: At the end of World War II, American leaders were keenly aware of the need for international rules to discourage the use of warfare as a means for settling differences between nations. They also supported strong sanctions against nations and individuals who violated the norms of civilized behavior.

Those goals were at the heart of the Nuremberg Tribunal, which held Nazi leaders accountable for engaging in aggressive war as well as for committing crimes against humanity. U.S. Supreme Court Justice Robert Jackson, who represented the United States at Nuremberg, made clear, too, that the principle of punishing leaders who launch aggressive wars would apply to all nations in the future.

“Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions,” Jackson said. “Let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose, it must condemn aggression by any other nations, including those which sit here now in judgment.”

In this guest essay (which originally appeared at HuffingtonPost), political analyst Brent Budowsky reflects on the principles of universal justice that Justice Jackson espoused:

When I was a young law student I presented a paper about the role of Supreme Court Justice Robert Jackson in the Nuremberg trials. My mentor and professor was the late Joe Borkin, who wrote The Crime and Punishment Of I.G. Farben and was intimately involved in the post-war prosecution of German companies that aided Hitler.

We Americans have begun -- and fallen short in -- one of the most important debates in our history.

From the moment that Dan Rather and Mary Mapes broke the story of Abu Ghraib on "60 Minutes" and Sy Hersh wrote his comprehensive story, the American President, the American Congress and the American people should have demanded full investigation of the total range of detainee issues and authoritatively applied the rule of law, across the board.

To this day, we have not met that obligation.

Guantanamo remains in business and even after a historic Supreme Court decision that outlawed some of the worst procedures, the President maneuvers to salvage his disastrous mistake at Guantanamo, while Congress now maneuvers to delay a resolution until election day grows closer which in my experience is danger for truth, justice and the American way.

Trust me; the partisan Republicans prepare the ground to accuse advocates of the rule of law of being "soft on terrorists"; trust me, the consultariat class of Democrats will include some who will advise Democratic leaders to hedge their bets and shirk their duty, as they often do.

Trust me, the Rovian mentality will be to use illegal detention policy as a wedge issue with the hope of maintaining control of Congress and appointing yet another Justice Alito, which will legalize what is currently illegal by votes of 5-4. No doubt, the man in the running for the worst Attorney General in the history of America, alongside the likes of John Mitchell, has probably prepared a contingency opinion restating his legally defamatory view that the Geneva Convention is some quant irrelevant relic made obsolete by the politics of war fever.

Guantanamo is the evil cat with nine lives. When Dana Priest wrote her award-winning and path-breaking reports in the Washington Post revealing allegations of secret prisons with more unsavory practices, Guantanamo survived intact.

When the Center for Constitutional Rights recently released its voluminous and sweeping report on detainee abuses, which should be read by all, Guantanamo survived intact.

Even after the Supreme Court issued a historic ruling Guantanamo remains intact and the maneuvering continues with the usual delays.

This issue should NOT be decided with delay while our politicians are campaigning in the weeks before their re-election. It should and can be decided NOW, based on the rule of law, based on the Supreme Court decision, based on traditional values, based on our national interests, and based on the higher standards and strong protections of military justice.

Here is my preemptive answer to what is coming if this issue is decided, unconscionably, on the brink of national elections.

First, the ideas and rules of the Geneva Convention are strongly and powerfully supported by virtually the entire leadership of every branch of our military. Geneva was created to protect our values and our honor, and Geneva was created, and supported by our military, to protect our troops. Only the ideologues and partisans with no personal experience in war, could dare to suggest otherwise.

Second, the Abu Ghraibs, Guantanamos and excessive casualties of civilians are one of the greatest single benefits to the terrorist enemies of America, Israel and democracy.

Historians will look back on these days and ask: why were our politicians so unaware of this obvious truth; so willing to let practices continue that create grave damage to our credibility and reputation throughout the world; so destructive to our standing in the battle of ideas that is essential to our war against terror; so casual in continuing practices that are recruitment advertisements for new terrorists; and so willing to fall for the politics of the Big Lie when it is Bin Laden who benefits from these practices, and our troops who would benefit from their end?

Regarding Guantanamo, there are two ways of complying with the rule of law, and the common sense of how to prevail in the war against terror, by ending the practices that help Bin Laden and other terrorists. We can close Guantanamo or open it to proper legal procedures; both are preferable to the wrong, disastrous and continuing course today. Both can be initiated together and immediately.

It is true that there are logistical issues about closing Guantanamo; it should have been done long ago; these issues could and should have been resolved had our President and Congress been more wise and true to our values and our interests.

So: we should apply all means for Congress, including Senator McCain, to move immediately to write standards that comply with honor, law and our interests. This issue must not be decided by election-year politics, or by the politicians and their consultants who have a sorry history, in both parties, under such circumstances.

We can initiate today, immediately, procedures to open Guantanamo to establish the rule of law, the checks and balances, the right to counsel, and the minimal procedures that befit our democratic nation. I have proposed a fully empowered independent commission led by a distinguished jurist with world-wide credibility, such as Sandra Day O'Connor. Obviously, neither Administration nor the Democrats, both of whom I have approached privately at high levels, long ago, with this suggestion, have taken this advice.

Actions can be taken today, to restore the checks and balances which would eliminate the worst abuses, while we move to longer-term and decisive resolution.

What I learned preparing my paper on Justice Jackson, was that diligence, commitment and an unyielding stance in support of basic values of Americanism are essential. Any maneuvers, delays, triangulations, evasions, partisanship or posturing on these fundamental American notions is a road to trouble that hurts our troops and creates more terrorists faster than we can kill them. I would state with 100 percent certainty that if Justice Jackson were with us today, he would have long ago issued a clarion call and waged an aggressive campaign that would have ended these abuses long ago.

In the name of protecting our values, protecting our troops, and killing the terrorists rather than recruiting more of them we should act now, to set things right.

Attorney General Gonzales is wrong; Justice Robert Jackson was right; and America will never stand for our highest ideals or win the real war, until our leaders know the difference.


Brent Budowsky was an aide to U.S. Senator Lloyd Bentsen on intelligence issues, and served as Legislative Director to Rep. Bill Alexander when he was Chief Deputy Whip of the House Democratic Leadership. Budowsky can be reached at brentbbi@webtv.net .


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