Eric Holder On The Rule Of Law
[Via Andrew Sullivan] Our next Attorney General’s thinking on the rule of law:
Eric H. Holder Jr., Deputy Attorney General during the Clinton administration, asserted in a speech to the American Constitution Society (ACS) that the United States must reverse “the disastrous course” set by the Bush administration in the struggle against terrorism by closing the detention center at Guantanamo Bay, declaring without qualification that the U.S. does not torture people, ending the practice of transferring individuals involuntarily to countries that engage in torture and ceasing warrantless domestic surveillance.
“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more, safe,” Holder told a packed room at the ACS 2008 Convention on Friday evening. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”
You can see the video of his address to the ACS here.
Below is the bulk of the transcript of the speech. It is worth reading from beginning to end. It is a reminder of how far the Bush administration has fallen from American ideals:
Unfortunately in the last few years, we have quite frankly lost our way with respect to this commitment to the Constitution and to the rule of law. The rule of law is not, as some have seen it, an obstacle to be overcome, but the very foundations of our nation. It is the rule of law that has held us together despite our differences while other nations have descended into strife. It is the rule of law that has made the United States a beacon to the world - a nation that others aspire to emulate.
Of course, any student of history will note that this is not the first time that we have let fear take precedence over the values that define us as a people. Various times in our history, those charged with the responsibility to keep the nation safe have overreacted to perceived dangers, often with a sorrowful consequence for our nation. Even some of our greatest presidents including John Adams, Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt have erred in this way. But a measure of our greatness as a nation is that we have quickly recognized our failures, reevaluated our judgments and corrected our policies. It is time for us to do that again today.
During the civil war President Lincoln faced the nation’s greatest crisis. More than 600,000 soldiers lost their lives in that struggle. In order to safeguard the nation, Lincoln suspended the Writ of Habeus Corpus on eight separate occasions. Now, to my mind, some of those suspensions were clearly justified. But others were not. And by the end of the war, Lincoln had suspended the Writ throughout the entire United States and authorized his military commanders to detain and imprison any person who was guilty of "any disloyal act or practice."
During World War II, months after Pearl Harbor, 120,000 individuals of Japanese descent - two thirds of whom were American citizens - were ordered to leave their homes in California, Washington, Oregon and Arizona and told to report to detention camps in which they were confined for some three years surrounded by barbed wire and military police. No charges - no charges - were ever brought against these men, women and children. There were no hearings, no findings of sabotage, espionage, or disloyalty. They were ordered to bring only what they could carry. Most families lost everything. And most importantly they lost their liberty. Now, although the Supreme Court upheld the constitutionality of that internment order, rejecting the proposition that it was infected by racial prejudice, this decision has come to be regarded as one of the darkest moments in American constitutional history - and justifiably so. In a courageous dissenting opinion, Justice Frank Murphy described the court’s decision in Korematsu as "the legalization of racism."
Now, I relate these historical incidents because it must inform our understanding of the present. In the months and years after 9/11, our government took many steps to ensure the safety and security of our people. Many of them were necessary and appropriate. For example, we have - not completely - improved our transportation security procedures. And we have partially disrupted the flow of money that finance terrorist operations. But other steps taken in the aftermath of the attacks were both excessive and unlawful.
Although we did not respond to 9/11 by imprisoning Muslim Americans, our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution.
Now, I do not question the motives, patriotism of those responsible for these policies. But this does nothing to mitigate the fact that these steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning. It is our responsibility as citizens to preserve and protect our Constitution. For it is our Constitution and the freedom that it guarantees that makes the United States the envy of the world.
Let me be clear. I firmly believe there is evil in the world and that we still face great dangers to our security. But our ability to lead the world combating these dangers depends upon the strength, not only of our military leadership, but our moral leadership as well. Sadly, that moral leadership has been fractured. To recapture it, we can no longer allow ourselves to be ruled by fear. We must evaluate our policies and our practices in the harsh light of day and steel ourselves to face the world’s dangers in accord with the rule of law as we have done in the past.
The history that I have recounted shows us that while we have lost our way before, we have never - we have never failed to correct our mistakes and stepped back onto the shining path envisioned by our founders and their Constitution. The time has come to take those steps once again. And nowhere is the restoration of our moral leadership and the rule of law more important than in the international struggle against terrorism.
The term "leader of the free world" is bestowed upon the United States president because of the civil liberties and the rights we guarantee our people. It comes from the power of our values as a nation. For the last six years, the position of the "leader of the free world" has been largely vacant. We have ceded much of the moral high ground which our own military leaders will tell you is a vital asset in our struggle against terrorism.
In September 2001, immediately after the terrorist attacks of 9/11, almost the entire world stood ready to follow our lead in the war against terrorism. The entire world was on our side. But, in their pursuit of the war on terror, too many of our leaders have forgotten who we are as a nation, what it is that makes us stand above almost every other nation on Earth, and as a result our ability to lead, our ability to persuade, and to prevail in this struggle has been crippled. We have squandered one of our greatest strengths as a nation.
I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture, and that acts that are merely cruel, inhuman or degrading are consistent with United States law and policy. That the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention. Never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.
This disrespect for the rule of law is not only wrong, it is destructive on our struggle against terrorism. Many have compared the Cold War - which President Kennedy called our "long twilight struggle" - to our current struggle against terrorism. I believe this comparison is apt to the extent that neither one has an ending on a traditional battlefield. But the comparison is even more compelling because both struggles are ones in which values, ideals and morals are as important as military strength. In five, six, short years we have lost too much of the moral high ground.
Don’t get me wrong. This is not a popularity contest in which we are engaged. Of course we should never jeopardize our security to simply to be admired. But our needlessly abusive and unlawful practices in the war on terror have diminished our standing in the world community and made us less rather than more safe. As retired generals Krulac and Hoar said recently, victory in the struggle against terrorism can only come when our enemy loses legitimacy in the society in which it recruits.
We cannot expect to turn the tide on terrorism if we do not regain the respect of those in the Arab and Muslim world who still stand with us in rooting out the extremists among them. For the sake of our safety and our security and because it is the right thing to do the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.
First, we must close our detention center in Guantanamo Bay. A great nation should not detain people, military or civilian, in dark places beyond the reach of law. Guantanamo Bay is an international embarrassment. Some of our closest allies now see this prison as a symbol of what America has become. We should close Guantanamo Bay, transfer the remaining prisoners to military prisons in the United States and adopt an expedited and procedurally fair review process for determining who we prosecute for war crimes, detain as combatants under the laws of war, or - yes - release.
Second, we must declare without qualification that it is the law, policy and practice of the United States government that we do not torture people, and we do not subject people to cruel, inhumane and degrading treatment. Torture is illegal, immoral, counterproductive and beneath the dignity and tradition of Americans.
Third, we must end all US government practices and programs, covert or otherwise, that transfer individuals involuntarily to other countries that are known to engage in torture. Extraordinary rendition is not a practice that began with this administration but this administration has taken it to new levels - perhaps new lows. As Americans, we should bring people to justice and not hide them away from justice.
Fourth, to those in the Executive branch who say "just trust us" when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration. These and other government abuses of power led Congress to enact into law the Foreign Intelligence Surveillance Act of 1978 - FISA. We must utilize and enhance our intelligence collection capabilities to identify and to root out terrorists. We must also comply with the law. We must also comply with FISA. If the defense, law enforcement and intelligence communities are in agreement that FISA is too cumbersome to identify and combat terrorist activity, the next president should work with Congress to improve the law to give additional resources to the court that supervises the FISA statute or to adjust its (inaudible).
Those who tell us that we must engage in warrantless domestic surveillance, that we must engage in enhanced interrogation or that we must engage in extraordinary rendition, or we will cripple ourselves in combating terrorism offer a false choice. There is simply no tension - there is no tension between an effective fight against those who have sworn to harm us and respect for our most honored civil liberties traditions. We can never put the welfare of the American people at risk but we can also never choose actions that we know will weaken the legal and moral fiber of our nation. If we do, we forget who we are as a country and we will face far more terrorists and not fewer.
As American we must never sink to judge ourselves by our enemies’ standards. In the struggle against terrorism we will only prevail if we persuade millions of people from Morrocco to Iraq to Indonesia that our values are more attractive than those of our enemies. We are the best example of a good nation that mankind has to offer. And a test of a great and good nation is whether we are strong enough to adhere to our values, not only when it is easy, but also when it is hard.
It is our task over the next several years to reverse the disastrous course we have been on over the past few years. We as Americans must stand up and recognize the mistakes that we have made, and we as Americans together must begin the process of correcting those errors as we have in the past. Our great democratic institutions and our tremendous respect for law are without doubt strong enough to weather the storm as they have weathered so many before. The rule of law and our stature in the world are inevitably, historically and inextricably linked. From the trials in Nurenburg to our victory in the Cold War, our respect for the rule of law has been a powerful tool to promote our national interests on the international stage.
If we hope to take our place as a leader on that stage we must reaffirm these, our most treasured values. This is our challenge.