The Basis of Liberty

In the midst of World War II, Justice Felix Frankfurter wrote that the history of liberty has largely been the history of procedural safeguards. The wisdom of that comment--and the parlous nature of our legal system, at least insofar as it deals with the threat of terrorism--is being demonstrated right now at Guantanamo Bay. There, a small group of courageous attorneys (mainly members of the armed services) are defending detainees scheduled to be tried before military commissions. As reported by the Associated Press, twice in the past few days, a military judge has refused to say whether he will apply the Uniform Code of Military Justice, federal law or international law to the cases. In a declaration that would have made Kafka proud, the prosecutor, an Air Force colonel, said that the judge could use several standards of law to provide a fair trial. Maybe, but the first requisite of a fair trial is for everyone--especially the accused, whose life or freedom is at stake--to know what the law is.

This is hardly the first example of the legal nightmare that is Guantanamo, a stain on American jurisprudence at least as deep as the internment of the Japanese during the Second World War. The injustice that America is perpetrating against the detainees and others in our custody and control, demonstrates that while the terrorists can never defeat us, it is all too easy for us to defeat ourselves.