The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us, thus absurdly sacrificing the end to the means.Thomas Jefferson was responding to a question from John Colvin regarding whether persons of high charge should act immediately to prevent calamities or stick with the writ of law to the bitter end, regardless of consequence. Most have heard Lincoln's mention of the Constitution not being a "suicide pact" to justify his actions in saving the Union during the Civil War. This debate was raised again in World War II with FDR's actions and has been a constant subject since 9/11 regards President Bush's various methods of confronting suicidal Islamic terrorists. Jefferson again:
The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest.The left continually suggests Bush should be impeached due to transgressions involving the various programs he's put in place, one being the detainee facility at Guantanamo Bay, Cuba. There is certainly merit to this discussion on both sides but it's become so encased in partisan mud that rational debate is nearly impossible.
Today's New York Times features a story about the recent judicial setback suffered by the administration regards enemy combatants being held at GTMO:
Advocates for detainees have criticized the tribunals since they were instituted in 2004 because the terror suspects held at Guantánamo have not been permitted lawyers during the proceedings and have not been allowed to see much of the evidence against them.The story has a definite overtone of hostility towards the administration, which seems par for the course for the Times based on past practices. For some reason it's devoid of any meaningful speculation from anyone who might back the government's position and only talks of the consequences for the detainees, leaving non-lawyerly bloggers to construct hypotheticals in an effort to understand what might be going on here.
P. Sabin Willett, a Boston lawyer who argued the case for detainees, called the ruling “a resounding rejection of the government’s effort to hide the truth.”
For example, let's suggest that several suspected terrorists are overheard by NSA speaking back and forth to terrorists in Europe and America about hidden bombs or biological agents. The wiretaps and signals intelligence are backed by clandestine CIA and DIA agents working in the local population under cover. Acting on all that intelligence the military sends in a Special Ops team to engage the cell, which results in a firefight along with the deaths of several troops and more than a few of the "suspected" terrorists. The survivors are cuffed and shipped to GTMO.
Upon their arrival they are immediately provided with taxpayer-funded civil rights attorneys who begin preparing their defense. While almost unheard of in previous wars it's still not stratospherically absurd, since it's a form of check and balance on the military and intelligence services and the GWoT is unlike any previous war. Under previous court rulings our hypothetical detainees were not privy to the means and tactics (or much of the other intel) used to break up their base and elicit their capture.
Since the Times piece focused on impacts to the terrorists and didn't bother discussing impacts on us peons out here in flyover country we're left to wonder whether the new ruling might allow civil rights attorneys access to ALL the intelligence files, including means and tactics used to gather the information? That's what if looks like. If so, it's a huge win for the Ramsey Clark set, who've long sought to know every little thing the government does regardless of consequence.
Should we applaud if some of these attorneys happen to leak their discovery findings to liberal-minded papers like the New York Times in an effort to inflict petty partisan political damage or stop what they consider to be erroneous procedures not in line with the Constitution? What if the government is still trying to track down the embedded cell members here in America or Europe? It's hard to imagine running a successful war in such a manner. As they say, when it comes to an attack the terrorists need get lucky only once, whereas we have to be right every rime. It's also hard to imagine this debate occurring in the aftermath of another attack on say, New York.
Jefferson talked of salus populi in the breadth of his reply, boiling it down thusly:
It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences.This is not to definitely say he would approve of Bush's present actions or those of FDR or Lincoln. But it's highly suggestive that he might.