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In his remarks, Mr. Bellinger claims that the system set up by the Military Commissions Act of 2006 is “not that different” from the well-established court martial system. One of the most significant differences between the two systems, however, is that the Military Commissions Act would allow the admission of evidence obtained through interrogation methods that involve “cruel, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States,” at least when the interrogation in question took place prior to December 30, 2005. The admission of such evidence is constitutionally prohibited in courts martial as well as in civilian courts.

This section of the Military Commissions Act is only one of several that undermine the legal prohibition on torture by giving a free pass to various forms of “torture lite”—outrages on personal dignity, or cruel, inhuman, humiliating, and degrading treatment. What exactly do I mean by “torture lite”? Think about the pile of naked prisoners at Abu Ghraib. Think about the memorable shot of the terrified prisoner with a snarling dog in his face. Think of little Lyndie England leading her prisoner around on a dog leash.

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After a distinguished career as a professor of law at the Hebrew University and as Attorney-General of Israel, Aharon Barak served on the Israel Supreme Court for twenty-eight years and for the last eleven years of that period as its President. Aharon Barak stands out not only for his jurisprudential brilliance and for the contribution he has made to the law of his own country and other democracies, but also for his warmth and unpretentious manner. Add to that a ready and slightly mischievous sense of humor and one can begin to understand the respect in which he is held by his friends and colleagues in many countries of the world.

It is important to locate the jurisprudential legacy of Aharon Barak in the context in which it was built. Judges in new democracies have the particularly difficult task of building an enduring legal foundation upon which succeeding generations can build. From personal experience as a member of the first South African Constitutional Court, I know that this is a huge responsibility. Our work in South Africa was done in the calm and joyful atmosphere of a secure and popular democracy, in which the vast majority of our people rejoiced in the creation of a constitutional state at the end of 350 years of racist oppression. Perhaps most important of all, we were given a detailed written Constitution that articulates, in generous terms, all internationally recognized fundamental human rights. It also makes provision for the clear separation of the three organs of government and safeguards the independence of the judiciary. We have been faced with a rampant crime rate and a population that clamors for strict law enforcement, but we are at peace with our neighbors. We trade and interact freely with all nations on our continent and in the rest of the world.

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Introduction*

Mr. Bellinger makes a brave effort to defend the indefensible. Obviously, he is not responsible for our detainee policy. But he must know that it has been a moral and strategic catastrophe, badly damaging the image of the United States and increasing the dangers that threaten us. Strangely, he poses a challenge: “[H]ow would you have done it differently each step of the way?” There are too many crimes and blunders to choose among. I will focus here on one central disaster, the use made of the Guantanamo Bay Naval Base, and one egregious constitutional violation, the abrogation of habeas corpus.

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I. REMARKS

The Military Commissions Act was signed by the President a few weeks ago, and a lot of questions have been raised around the world in response. In fact, I just returned from London last night, where I was giving a talk at the London School of Economics explaining the legislation and its implications. Because I know that people are very interested in this topic right now, I jumped at Jack Goldsmith’s invitation to speak to you about it. I have a few things to say to begin, after which I hope to move on to an open discussion.

Since 2005, when I became the Legal Adviser to the Secretary of State, detainee issues have arisen as one of the more troubling challenges facing Secretary Rice as she engages in diplomacy around the world. These issues have caused great controversy among friends, allies, and critics alike. And, the more involved Dr. Rice has become in the debate, the more opportunities I have had to take the lead in shaping the State Department’s approach to the topic.

The legal complexity of detainee issues makes it difficult for embassies and ambassadors around the world to appraise and discuss the subject. Unfortunately, over the past three or four years, the State Department has not done its best to
answer questions, clarify policies, or explain its actions to our allies. Dr. Rice has asked me to address this communications problem.

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