Leading to Low Ground - New York Times
The New York Times

July 20, 2006
Op-Ed Columnist

Leading to Low Ground
By
BOB HERBERT

"We are different from our enemy and we must remain so."

- Elisa Massimino

The United States had complete command of the moral and ethical high ground
in the immediate aftermath of Sept. 11, 2001. Most of the world was with us.

For some reason, the Bush administration deliberately abandoned those
heights to pursue policies that were not just morally questionable, but
reprehensible.
Administration officials have fought like tigers to retain the right to
torture. They have imprisoned people willy-nilly, without regard to whether
they
had actually committed offenses against the United States. They set up a
system of kangaroo courts at Guantánamo Bay, Cuba, that was such an affront
to
the idea of justice that it should have sent shudders of shame down the
spines of decent Americans.

In fact, most Americans never bothered to notice.

The administration's descent into barbarism hit a speed bump last month when
the Supreme Court ruled that the kangaroo courts, otherwise known as
military
commissions, were an unmitigated outrage. They were patently illegal. They
had not been authorized by Congress. They violated the Geneva Conventions.
They
stomped all over the rights of the defendant.

The inquisitors of the Middle Ages would have smiled knowingly at
Guantánamo.

Elisa Massimino is the Washington director of Human Rights First. She
testified yesterday before the Senate Armed Services Committee, which has
held hearings
as part of the effort by Congress and the White House to come up with a
system for trying prisoners at Guantánamo that would replace the outlawed
commissions.

"Part of the problem," she told me in an interview, "is that we've got these
detainees in custody, and the rhetoric about them for four years now has
been
so elevated that people want to create a system that will guarantee their
conviction. But that's not worthy of this country. That's not how justice is
done. That may be how other countries do it, but that's never been how we've
done it."

In her testimony, Ms. Massimino discussed some of the requirements of the
Supreme Court ruling. Among other things, she said, "We cannot have rules
permitting
one person or branch of government to be the judge, jury and prosecutor."
She said, "Defendants must have the right to be present at trial." She said,
"A defendant must have the right to know the evidence being used against
him, to respond to it, and to challenge its credibility or authenticity."

Americans are used to taking these sorts of things for granted. How is it
possible that the president of the United States could set up a system in
which
these kinds of fundamental rights were held in complete contempt?

But there's more. The administration was not satisfied with rigging the
system against the defendant. As she continued discussing the requirements
of the
Supreme Court ruling, Ms. Massimino said: "Testimony cannot be compelled.
... This means not only that a person cannot be forced to testify, but also
that
information or witness statements obtained through torture, cruelty or other
coercion cannot be used as evidence."

That rumbling you hear is the sound of the founding fathers spinning in
their graves. Incredibly, under the trials originally authorized by
President Bush,
prosecutors would have been allowed to introduce evidence obtained through
torture and other forms of coercion. The Bush administration didn't just
leave
the moral and ethical high ground. It sped away with great enthusiasm.

What is interesting is the common ground on this issue that is being found
by human rights groups and the highest-ranking lawyers of America's armed
forces.
Testifying last week before the same committee that Ms. Massimino addressed
yesterday, top lawyers from the Army, Navy, Air Force and Marines all
endorsed
proceedings that would give more rights and protections to detainees than
the administration had been willing to give.

In her testimony, Ms. Massimino urged the committee to use the existing
Uniform Code of Military Justice as the basic system for trying detainees.
In his
appearance before the committee last week, Brig. Gen. Kevin Sandkuhler, the
top lawyer for the Marines, described that code as "the gold standard."

After a while you get the sense that real progress could be made, if only
the Bush administration would get out of the way.

Posted by Miriam V.