October 24, 2004 | Philadelphia Inquirer

Security vs. Freedoms

Revelations about prisoner abuse during the American stewardship of the Abu Ghraib facility near Baghdad first broke into a full-fledged scandal with the publication of horrifying images in April. The ensuing half year has produced a good deal of heat, but not much light.

With the election looming, the fire has been fanned politically, often irresponsibly. President Bush has been personally blamed as if he had been the ringmaster on hand for the perverse display. Similarly on cue, there have been countless calls for the resignation of Donald Rumsfeld, an extraordinarily able defense secretary who has merely led the toppling of two terror-supporting tyrannies in record time with a stunning minimum of casualties.

With a dearth of actual evidence connecting Bush and Rumsfeld to the abuse, opponents opportunistically seized on leaked memoranda from government attorneys at the non-policy level doing precisely what such advisers should do – assessing the legal parameters of relevant issues, such as interrogation techniques, to ensure that their principals are properly informed when making judgments. Although such memos never embodied official government policy, the fact that torture law was discussed – as it necessarily had to be under the circumstances – was scurrilously used to infer that policy makers gave nod-and-a-wink approval to prisoner abuse despite their express orders to the contrary.

The shame of Abu Ghraib, ironically, also brought out the best of America. The scandal was unearthed and revealed by the military itself – long before the photographs roused the media from their slumber. Multiple, aggressive investigations were undertaken, including by Maj. Gen. Antonio Taguba and former defense secretary James Schlesinger's panel, which, though scathing about the perpetrators and their commanders, determined that there had been neither an official U.S. policy of abuse nor “approved procedures” for inhumane treatment. The administration, moreover, has ensured that the misconduct is being vigorously prosecuted, with 45 personnel thus far referred for courts-martial.

There simply is no other country on Earth which so flagellates itself, for all the world to see, in pursuit of justice.

The sensationalization of the scandal, however, has had real costs. For one thing, it has crowded out a crucial debate about terrorist detainees. Militant Islam, our enemy in the war on terror, does not have a territory we can conquer or treasure we can seize. Defeating it – which is every bit as essential to our future as was defeating the 20th-century blights of Nazism and communism – is, plain and simple, a battle to get the intelligence that may prevent the next atrocity. People willing to immolate themselves in terror attacks are not much impressed by Miranda warnings and benevolent detention.

It sounds enlightened to assert that we should never consider any form of aggressive interrogation and that even terrorists should be entitled to Geneva Convention protections. But is that prudent policy in an era when a terrorist cell can kill tens of thousands in a weapon-of-mass-destruction attack? Are we really opposed to forms of prisoner discomfort – even nonlethal, carefully monitored, and perhaps court-supervised forms – if a known terrorist refuses to divulge what he knows of a ticking bomb about to detonate in a crowded metropolis? Do we really want to extend Geneva rights to non-state terrorists whose activities – indiscriminate mass murder of moral innocents, hiding and planning among civilians, schools, hospitals and places of worship – are the very types of atrocities that spurred Geneva in the first place?

And what about the rifts terrorism is tearing in our legal system? The courts have proved a profound failure as a stand-alone resource for counterterrorism policy – in the 1990s, for example, neutralizing fewer than three dozen terrorists while al-Qaeda's ranks swelled into the thousands and its attacks became progressively more deadly. Yet, making the justice system work for terrorists – mainly, foreign enemies with no valid claim on U.S. constitutional protections – necessarily requires watering down fundamental rights our society must afford to Americans accused of violating the law.

We need a new legal construct for dealing with national security cases, one that confers sufficient due process to have integrity but that ensures we can fight terrorists without providing them, in court proceedings, with lavish intelligence that will help them kill us. Abu Ghraib should catalyze us to a much-needed national conversation – one from which we can cull some enduring good out of what has been a sordid chapter in our military history and our public discourse.

– Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies and led the 1995 prosecution of Omar Abdel-Rahman in connection with the World Trade Center bombing.