“The soldier and the lawyer may both love this country with equal passion,” Barack Obama said in his elegant Notre Dame commencement speech, “and yet reach very different conclusions on the specific steps needed to protect us from harm.” You can say that again. In recent weeks, the President and just about every other major politician from both parties have been boggled by soldier-lawyer disputes. Some have been small: whether or not House Speaker Nancy Pelosi was adequately briefed on the CIA’s use of waterboarding in 2002. Others cut to the core of asymmetrical warfare, especially the question of what sort of rights to grant prisoners captured in a war that is likely to be fought in perpetuity against an amorphous, stateless enemy.
Soldiers and lawyers live at opposite intellectual extremes. Lawyers at least those who deal with constitutional questions live in an abstract world of seemingly precise codicils, which often turn out to be maddeningly inadequate when confronted by the violent imprecision of war. Soldiers in combat live in the existential horror of right now; their decisions save or cost lives. The best of them understand the need for rules, but don’t have the luxury of abstraction. And so, Guantánamo: the lawyers defend the rights of the detainees, the soldiers fear the consequences of granting undue rights to villainous fanatics and the Obama Administration has to adjudicate.
It shouldn’t be too hard to find a middle ground, theoretically. The soldier and lawyer arguments are being made, in this case, by unappealing extremists. The lawyers, led by the American Civil Liberties Union , believe that the detainees should be treated, more or less, under the civil-justice system as described by Article III of the Constitution. The soldiers, misled by former Vice President Dick Cheney, believe that in a time of war, the President has unlimited ability to set the rules necessary to protect the nation. “They’re both wrong,” says Senator Lindsey Graham, a lawyer-soldier who still serves as a JAG in the Air Force Reserve. “You need a hybrid system, which is why I favor military commissions.”
A “hybrid” system would address the conflict between the rules of evidence and national-security needs. Obama has addressed one major objection to military commissions by proposing that evidence gleaned from coercive interrogations be inadmissible. The less melodramatic but more serious problem has to do with secrecy. The Bush and now the Obama Administration argues that much of the evidence accumulated against the detainees can’t be revealed in open court, since it comes from top-secret intelligence sources and surveillance systems, as well as from third-country intelligence services that refuse to testify in U.S. proceedings. According to Chris Anders of the ACLU, an existing statute allows for classified evidence to be summarized, without source, for civilian courts. “The trouble is, in open court, the judges and the defense lawyers always want to know the source of the information,” says former CIA director Michael Hayden, who says he made a good-faith effort to cooperate in one civil terrorism case, “and we just can’t go there.”
Senator Graham favors the modifications to the military-commission system that Obama has proposed and he favors one more: “Let’s not kid ourselves. We’re handing out de facto life sentences here, and there should be some sort of civilian review.” So Graham who believes these procedures should be applied to the prisoners both at Guantánamo and in Afghanistan has proposed a National Security Court, similar to the panel that adjudicates FISA cases. The proceedings would be closed, but civilian judges would have top-secret clearance to review all the evidence in every case brought before a military commission. That seems an eminently reasonable middle course to me.
Most of the other issues swirling in the lawyer-soldier tornado are either trivial or meretricious. The recent fuss over where to put the Guantánamo prisoners is tawdry politics, incited by desperate Republicans with the supine complicity of congressional Democrats. There are plenty of convicted terrorists currently serving time in U.S. jails. That’s why we have supermax prisons, like Administrative Maximum in Florence, Colo. Those convicted in military courts should be held in military prisons.
The question of whether to release additional photos of U.S. personnel torturing Iraqis is more difficult, but I believe the President’s decision to block the release is the right one. The photos add nothing to our knowledge of this despicable behavior and may well detract from the security of our people serving overseas. I must admit a bias here: my son is a U.S. diplomat serving in Baghdad. His residence is rocketed almost every night. The threat to his safety from Iraqis infuriated by these photos is not theoretical. For me, this reality lived each day by hundreds of thousands of parents of soldiers, diplomats and aid workers transcends the redundant right to know something we already know. It is simple common sense the quality that should be foremost as Barack Obama addresses these issues.
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