A Day to Reflect Upon the Values of a Free Nation

July 4, 2006 by Dorothy M. Ehrlich, The San Francisco Chronicle

"Honor Bound to Defend Freedom" reads a banner over the entrance to Guantanamo Bay Naval Base. U.S. Navy Lt. Cmdr. Charles D. Swift soon learned how much the noble sentiment of those words clashed with the realities faced by his client, Salim Ahmed Hamdan, a prisoner at the Cuba-based U.S. detention center. "There is no law for you in Guantanamo Bay," Hamdan was chillingly told by his interrogators. It was a statement that made Swift's blood run cold, and made him realize that the two notions -- defending freedom and the absence of the rule of law -- could not stand together.

This incompatibility of principle led Swift to successfully challenge the suspension of law for Guantanamo detainees. The case concluded last week with the U.S. Supreme Court's dramatic decision striking down the military commission established by President Bush to try detainees at Guantanamo Bay.

The court's 5-3 decision in Hamdan vs. Rumsfeld made it clear that the president cannot run roughshod over the U.S. Constitution and the Geneva Convention in the name of a "war on terror." The president has no authority, the court ruled, to create military tribunals that do not afford, "all the judicial guarantees which are recognized as indispensable for civilized peoples," such as protection against coerced testimony.

In its friend-of-the-court brief, the American Civil Liberties Union cited extensive evidence that detainees at Guantanamo Bay and other American prisons throughout the world are subjected to torture. The evidence, obtained through Freedom of Information Act litigation, described beatings, sexual assault, religious humiliation and other techniques described by government officials as "highly aggressive." As the ACLU's brief stated, "The possibility that evidence secured through the methods described above might form the basis for a conviction -- or even a sentence of death -- infects the legitimacy of the entire [military] commission process."

Unfortunately, this record of torture and misuse of military tribunals is far from an isolated occurrence. From Guantanamo Bay to the clandestine, illegal wiretapping of Americans conducted by the National Security Agency to authorizing secret CIA kidnappings of people sent to foreign countries for torture, this president has acted outside the law and without judicial scrutiny. The Supreme Court's decision justly rejects the president's anti-democratic claim of power that underlies such practices.

It is particularly fitting that the court's ruling was issued in time for our celebration of Independence Day, a day to reflect upon the values of a free nation. On this Fourth of July, we remember the true legacy of freedom that Swift and millions of Americans who cherish these fundamental values are determined to defend.

In his Pulitzer-Prize-winning book, "Washington's Crossing," historian David Hackett Fischer reminds us that the real measure of our nation's fiber is in the principles we honor, rather than abandon, during times of war. Fischer tells the story of the pivotal 1776 event that changed the course of the American Revolution.

In response to the British forces' cruel treatment of American prisoners of war, Gen. George Washington ordered American troops to treat British detainees with decency, even kindness: "Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British army in their treatment of our unfortunate brethren."

As Fischer writes, such "moral choices in the war of independence enlarged the meaning of the American Revolution. The story of Washington's Crossing tells us that Americans in an earlier generation were capable of acting in a higher spirit - and so are we."

Now it is up to the Congress and the people to demonstrate that we, too, can act in a higher spirit -- putting an end to the president's abuse of power and reclaiming our constitutional rules of law. It is a fitting way to celebrate our country's founding, paying tribute to the vision and sacrifice of all patriots who feel honor bound to defend freedom.

Dorothy M. Ehrlich is executive director of the American Civil Liberties Union of Northern California.