A Question of Morality

"Torture is immoral, always. I find myself wondering what have we come to as a country that we are having to debate something that is so very wrong in every way." -- the Rev. Allie Perry, during a Sept. 20 press conference in Hartford, Conn. (Hartford Courant)

A few years ago, in anticipation of the Geraldine R. Dodge Poetry Festival in New Jersey, I had the opportunity to interview the Israeli poet Aharon Shabtai.

Our conversation covered a lot of ground, but something he said then has been echoing in my ears of late, as Congress and the president consider changes to US and international law that would strip accused terrorists of the right to a fair trial or protections against torture or other abuse.

We were talking about the Israeli occupation of Gaza and the impact it has had on Israeli society. Shabtai, a vocal critic of the Israeli government, says it has created a "deep cultural change" that has led to a coarsening of society.

"I don't live now in the same country where I was born," he told me. "It was a Jewish country with Jewish values. You realize now that it is spoiled."

It is difficult not to think of that comment now, as the president seeks to create a separate class of people for whom American laws do not apply, opening what could be a Pandora's Box of unintended consequences and leading to a further coarsening of American society.

The president's proposed legislation, as Jeremy Brecher and Brendan Smith write in The Nation, would "establish tribunals at Guantánamo that would deny the most basic legal protections required by the Geneva Conventions, allow the use of hearsay evidence and evidence obtained by coercion, and allow defendants to be convicted on the basis of evidence they had never seen" and gut "much of the War Crimes Act, which makes it a federal crime for an American to commit 'grave violations' of the Geneva Conventions."

A small group of GOP rebels -- US Sens. John McCain, John Warner and Lindsey Graham -- stalled the legislation in mid-September, correctly explaining that allowing torture by Americans will lead to torture of Americans.

While their argument is a compelling one, it is badly flawed. The pragmatic argument relies on our legitimate concerns for American soldiers, but does little to challenge the notion that there are two classes of prisoners -- the deserving and the undeserving.

It is a dangerous distinction. Creating separate classes, as the Georgetown University law professor David Cole has written, erodes the notion that men and women enjoy a set of "inalienable rights," as the Constitution calls them.

"The rights not to be locked up arbitrarily or to be protected from treatment that shocks the conscience are human rights, not privileges of citizenship," he wrote last year on "We should honor these rights wherever we are acting and on whomever we are acting."

Columnist James Carroll makes a similar point in a September column in the Boston Globe:

"(T)he fabric of law is spun from a single thread and when the US government deems a few individuals to be less worthy of full protections against the abuse of power, everyone is threatened."

The president has used a number of arguments to defend his approach. At first, he argued that we were fighting a new kind of enemy and that the restrictions of the past are no longer effective ("quaint" is the way his administration has described them). More recently, he has said that the Geneva Conventions' protections for prisoners were "open to interpretation" and in need of clarification.

In the end, however, it does not matter which argument he pursues. Should Congress approve the president's approach, it will be creating distinctions in the law that can only do harm to the law -- and ultimately to the nation as a whole.

"Justice is measured in every society by how the worst malefactors are treated -- the worst not only in culpability, but in capacity for general harm," James Carroll wrote in his Sept. 18 Globe column. "The best way to combat terrorism is to wrap accused terrorists in the cloth of the law they would rip asunder. More important, to legalize the abuse of a class of prisoners is to prepare for the abuse of all."

To allow the creation of multiple classes of people under the law is to alter who we are as a nation and that would be a tragedy as great as the one that befell us on Sept. 11, 2001.

Hank Kalet is a poet and managing editor of the South Brunswick Post and the Cranbury Press. Email See his blog, Channel Surfing, at

From The Progressive Populist, October 15, 2006

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