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The Election and America’s Future

US troops have not been able to stop the daily carnage, but they have almost certainly prevented outright civil war, and dismemberment of the country into ethnic enclaves, possibly accompanied by invasion or incursions by Turks, Iranians, Syrians, and other foreign forces. A candidate has to do more than dish it out to his opponent; he also has to tell home truths to his own side. It would reinforce Kerry’s position and add to the intellectual honesty of his campaign if he would also make it clear that a troop presence through 2006 will very probably be necessary to prevent civil war.

It would also be candid on his part to admit that as bad as the situation actually is, it could be worse. So far, the Kurds have behaved cautiously. They have not seized Kirkuk and the oil fields, and have swallowed their disappointment when the transitional administrative law acknowledging, albeit somewhat vaguely, their demands for autonomy in a federal Iraq lapsed, and successfully maintaining order in the northern quarter of the country. There is no real prospect of continuing Kurdish restraint if the US pulls out prematurely. As for the Shiites, Ayatollah Ali Sistani has repeatedly given the lie to the view that Iraqis don’t want democratic procedures by using his authority to insist that any political future in Iraq requires real parties and real elections supervised by the UN.

The issue that Kerry has to face squarely is how to honor the American commitment to carrying out free elections in Iraq. There is an opportunity for leadership here, since the Bush administration is taking several positions at once on when and whether elections can be held in the Sunni Triangle. The suggestion by Rumsfeld and others that elections can go ahead without taking place in the triangle cannot possibly result in legitimate national political institutions.

The immediate question is how to make elections possible in the provinces that are controlled by the insurgents. The UN cannot monitor elections without security, and there is no chance, at least in the coming year, that Kerry can actually deliver on his plans to “internationalize” the security problem, by turning it over to UN peacekeepers or NATO troops. “Don’t even ask us,” is how the German foreign minister, Joschka Fischer, put it when asked whether the Europeans would contribute to stabilizing security in Iraq.

The next-best alternative to an international security force—a negotiated handover of security to local Iraqis—has been tried in Falluja and has only resulted in the insurgents taking over and terrorizing many of the inhabitants. In Najaf and Karbala, similar negotiations allowed the insurgents to walk away with their weapons. As for the national Iraqi army doing the job, General Petraeus has not yet trained enough troops to guard the polling booths in January 2005. The civil order necessary for elections cannot be established, as this administration seems to think, by using air strikes, which often kill or wound civilians while failing to deter insurgents. The only real alternative is a ground operation, if necessary retaking insurgent-held towns block by block, without killing so many civilians that the operation sets off a national uprising that derails the elections altogether. The sole acceptable rationale for such an operation—which would inevitably cost American casualties—would be to retake areas held by insurgents so that a combination of US and Iraqi forces could guard polling stations for a free vote during the first quarter of 2005. If this fails, Iraq’s chance of a democratic transition may slip by. A commitment by Kerry to work to make possible a democratic Iraq is essential if civil war is to be avoided.

As the news from Iraq worsens, Kerry may be tempted to promise an exit from the quagmire and quietly jettison his commitments to a democratically elected government in Iraq. Yet holding firm on his intention to sustain an electoral process is vital. Those who opposed the war have good reasons to feel vindicated by the horrible turn of events in Iraq. Their problem is that if America abandons its commitment to helping Iraqis fight for a democratic outcome, through the end of 2005 and into 2006, this betrayal will transform the occupation’s many failures into an unforgivable crime.


Cambridge, Massachusetts

The election of 2004 matters for many reasons. It may have profound effects on the exercise of American power in the world, on the environment, on national and international economics. But for me the most troubling question that this election may affect is one less noticed: Is this country still committed to law as the foundation of the American idea?

Law has defined our political structure from the beginning. Without the intricate balance of state and federal power devised by Madison, Hamilton, and the rest—and the separation of the federal government into three branches—the United States would not have come into existence. And without judicial enforcement of the Constitution as law, this sprawling, unruly country would not have held together. When the Supreme Court decided Bush v. Gore in 2000, even those who thought the decision illegitimate—a feeling that remains—accepted it.*

But since September 11, 2001, President Bush and his administration have made a mockery of the American commitment to law. Using the threat of terrorism as a reason, they have overridden constitutional rights and treaties to take harsh, punitive action against hundreds of individuals.

Perhaps the most brazen example of disregard for law was Bush’s decision to deny all the prisoners at Guantánamo Bay, Cuba, the right to a hearing on their status—a right guaranteed by the Third Geneva Convention, to which the United States is a party. Secretary of State Colin Powell told the President that violating the convention that way would “reverse over a century of US policy and practice… and undermine the protections of the law of war for our troops.” The State Department’s legal adviser, William H. Taft IV, said compliance with the Geneva Convention would show that the United States “bases its conduct not just on its policy preferences but on its international legal obligations.” But Bush found, without any hearings, that all the prisoners were “unlawful combatants.”

At home, Attorney General John Ashcroft swept thousands of aliens off the streets and ordered them held as suspected terrorists—without evidence—for weeks and months. Two American citizens, Yasser Hamdi and Jose Padilla, were imprisoned as “enemy combatants” without trial or access to counsel. They were still in a Navy brig more than two years later when Attorney General Ashcroft decided to send Hamdi home to Saudi Arabia if he would give up his US citizenship—a condition that Hamdi accepted. That happened because the Supreme Court decided last June that Hamdi had the right to challenge his detention in a proper hearing. Ashcroft let Hamdi go rather than let him have his day in court, when the Justice Department would have had to produce evidence. In a statement, Ashcroft still referred to Hamdi as an “enemy combatant”—the claim that he had never been willing to submit to the process of law.

Then there was Abu Ghraib. After the publication of the appalling photographs of naked, humiliated, abused American prisoners in Iraq, we read the memoranda from Justice Department and Defense Department lawyers arguing in elaborate detail that Americans could torture prisoners and avoid criminal charges for doing so. Those memoranda opened the way to the crimes of Abu Ghraib. They argued explicitly that the President was not required to comply with laws passed by Congress, much less treaties, when it came to handling war prisoners.

We have to understand that these were not positions taken casually by low-level lawyers. The authors of the torture memoranda were leading members of the new right in American law. One was Jay S. Bybee, an assistant attorney general who has since been made a judge of the US Court of Appeals for the Ninth Circuit. Another was John C. Yoo, formerly a deputy assistant attorney general and now a professor at Boalt Hall, the law school of the University of California at Berkeley.

Professor Yoo defended the torture memoranda in a piece for the Los Angeles Times. He said the memos were right to argue that someone accused of torture could effectively argue self-defense, meaning defense of the country—an argument that could kindly be called preposterous.

What is so striking about these right-wing lawyers is how they have stood the traditional position of legal conservatives on its head. Conservatives used to warn against concentration of power in the presidency. They used to insist on respect for the states and the other branches of the federal government. Today Bybee, Yoo, and their allies want to have a presidency essentially unconstrained by law. They see law as a mere instrument of power.

A major consequence of a change of administration would be a new attorney general, one who would surely return to the principle captured in a motto written on the wall of the attorney general’s office: The United States wins its case when justice is done. In respect for international law, too, there would likely be a return to traditional American positions.

The Bush administration’s disregard for law has been damaging to America’s reputation in the world. For decades this country has urged others to make respect for law a high principle. Many countries around the world have followed the American example in the last fifty years and adopted written constitutions and judicial enforcement of rights. For the United States to put its notion of necessity over law looks, even to our best friends, like hypocrisy.

There is a sense in this election that we are not just deciding who should lead us. We are showing the world, and ourselves, what kind of country we are.


Provincetown, Massachusetts

A victory for Bush may yet be seen as one of our nation’s unforgettable ironies. No need to speak again of the mendacities, manipulations, and spiritual mediocrity of the post–9/11 years; the time has come to recover from the shock that so abysmal a record (and so complete a refusal to look at the record) looks nonetheless likely to prevail. Who, then, are we? In just what kind of condition are the American people?

A quick look at our movie stars gives a hint. The liberal left has been attached to actors like Warren Beatty and Jack Nicholson. They spoke to our cynicism and to our baffled idealism. But the American center moved their loyalties from the decency of Gary Cooper to the grit and self-approval of John Wayne. Now, we have the apotheosis of Arnold Schwarzenegger. He captured convention honors at the Garden in the course of informing America, via the physicality of his presence, that should the nation ever come to such a dire pass as to need a dictator, why, bless us all, he, Arnold, can offer the best chin to come along since Benito Mussolini. Chin is now prepared to replace spin.

  1. *

    For the view of a Gore lawyer on the Florida election controversy in 2000, and its ending in the Supreme Court, see the last chapter of Courting Justice, by David Boies, just published by Miramax Books.

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