Now I’m ready to hang out my flag. The heavy clouds of self-doubt under which I’ve done that on recent national holidays have perceptibly lifted.  Yesterday’s Supreme Court decision rejecting the Administration’s arguments for trying Guantanamo detainees before military tribunals was what many of us had been hoping for. Yet all the while we wondered whether it was still possible.

 

            It had seemed to us that

·         the weakness of Congress on all issues concerning the war

·         the lack of leadership in the Democratic Party 

·         the ability of Bush’s legal minions to amass for the President unprecedented levels of executive power and

·         the perceptible movement toward the right of the Supreme Court (as in the stealing of the 2000 election)

could mean only one thing: our democracy was not going to survive. We might be adjudged sentimental for thinking, as we still did, that democratic government requires real checks and balances, and that in a democracy one governs by going through a process, and not just by laying down fiats, that those in authority are—like the rest of us—under law.

 

How many examples of “new thinking” have we had to endure telling us “The world is no longer the same,” that “We now live in a state of perpetual war,” that “in confronting such enemies as America now has we need a strong executive?” How many times had we been told to “trust those in power?” We were old-fashioned people, used to living in less dangerous times. We had to start thinking in new ways.

 

As one who has spent a good deal of his adult life working on international human rights issues, I had come to feel I was boring people by continuing to insist, over the past few years, that international treaties entered into by the U.S. became, by our Constitution, part of the supreme law of the land. No one wanted to hear that there were limits to what the U.S. could do. As we all know, Congress ratified the selection of Alberto Gonzales, who considers the Geneva Conventions “obsolete and quaint,” as our Attorney-General. There was nothing we could do, absolutely nothing, to stop the transformation of the United States from constitutional democracy-- from being an Athens, or even more, into an imperial war-state, a modern-day Sparta or Rome, living in “the New American Century.”.

 

Just yesterday morning, only a couple of hours before the Supreme Court was to give its opinion in Hamdan v. Rumsfeld, I had had my latest battle in what seems an endless war.  This time it was at the Y. with an army reservist who was on the adjacent elliptical runner, over the admissibility of torture. Even after the Congress had voted, 90-5, in support of John McCain’s bill to outlaw torture and Bush had, reluctantly signed it, the President had, in his signing statement, thumbed his nose at all of us who worked—and worked hard—to insist that the U.S. military would abide by international law and by our own Uniform Code of Military Justice and not engage in torture.

 

“But what is torture?” my neighbor asked me. “How do we define it? Isn’t that the question?” I told him that it is defined—very clearly—in the U.N. Convention Against Torture, and that the U.S. had signed and ratified the Convention, and that it was under Jesse Helms’ stewardship of the Senate Foreign Relations Committee that we finally had ratified it. He couldn’t care less. “I don’t know who Jesse Helms is,” he sneered.

 

And then to come home and hear the news that the Court had “delivered a stinging rebuke” to the President, was almost too good to believe. Military tribunals, the Court had decided, are illegal. They were not authorized by Congress and their procedures violate the Uniform Code of Military Justice. Bush could not claim Congress had “implicitly” authorized him to establish them when it authorized the use of force in September 2001. The U.S. was bound by Article 3 of the 1949 Geneva Conventions to see that any detainee be tried in “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” What amazing words! What joy to hear them, and hear them from those in power!

 

In addition Justice Stevens, in his majority opinion, cited Article 3’s prohibition on doing “violence to life and person, in particular humiliating and degrading treatment.”  The Supreme Court, I realized, has said it, and said it strongly: all detainees, whether adjudged by our administration to be prisoners of war or not, must be treated humanely.

 

And so I will hang out my flag this year with thanks to God that the U.S., all bets to the contrary, has not run, lemming-like, over the edge of the cliff, and with a prayer that we may once again come as a people to cherish being part of the community of those nations which practice justice under law.