When The Last Law Was Down

What does it mean to be an American? This may sound like a trite question, but it is one that we have been asking for the entire history of the United States, and it has more relevance than ever in the age of globalization—and terrorism. Europe seems to do little but debate its identity these days. Tidy garden-apartment nations, whose politics for decades consisted of little more than debating how much they should expand the social-welfare state, now find themselves asking, “What is a Frenchman? A Dane? A Dutchman?” as they confront suddenly potent neofascist parties launching one assault after another on immigration.

We in the United States have already established —albeit after much struggle of our own—that an American can be anyone who pledges loyalty to the Constitution of the United States and to the principles and laws of democracy that it lays out. The fact that we are a nation of ideas and laws would seem to give us an immeasurable advantage in the world. Among other things, it led to what was, overall, a remarkably mature, level-headed reaction by the American people to the terrorist outrages of September 11, 2001.

Too bad our government has not managed to display the same maturity. Instead it has sought to radically reinterpret our Constitution, and threaten thereby the skein that holds us all together, by suspending habeas corpus even for an American citizen. The case I am referring to is that of Jose Padilla, the former Chicago street thug apparently turned Islamic warrior who was apprehended while planning to build a radioactive “dirty bomb.” I write “apparently” because it is impossible to actually know any of the above. That is the whole problem with doing away with the right of habeas corpus, one of the supporting pillars of the Anglo-American legal tradition. The accused must be brought before the bar of justice; he cannot be chucked into the king’s dungeons to languish indefinitely simply on the say-so of some official. This was one of the rights that our forefathers fought for in the Revolution.

The current administration seems to believe that the right to a speedy trial is a more malleable thing. Padilla’s arrest was announced at an expedient moment, just as investigations into the intelligence failure that allowed September 11 to take place picked up steam—and only then, we were told, because he was about to be “turned over to the military.” Later we were informed, that this American citizen was to be considered an enemy soldier and kept in military custody until our current war against terrorism is over.

Turned over to the military. Kept in custody until the war is over. How strange these words sound in the lexicon of our democracy. Can a democracy fight a war and still maintain its constitutional principles? As I wrote in this space some months ago, this right has rarely been suspended before, and when it has, most notably during the Civil War, the results have generally been bad. The suspension of any part of our Constitution always serves to do more to undermine our country than anything or anyone it may have suppressed.

In a thoughtful response to this view, published in the “Correspondence” column of our June/July issue, retired Navy commander Gerald W. McDonald argued that our present struggle against international terrorism makes the whole idea of open trials infeasible. “Prosecutors will have to present evidence of their crimes, which will necessarily involve identification of the methods by which it was gathered,” he wrote. “Such sources must be protected at all times. This protection will require closed courts and sealed testimony.”

The commander makes a good point, but I think it is contradicted by another example from our history, in a time of crisis and war, when two American spies who served a foe much more formidable than Al Qaeda were convicted in open court of trying to acquire an even more deadly weapon than the one Jose Padilla was supposedly working to put together. The spies in question were Julius and Ethel Rosenberg, who were arrested, tried, convicted, and executed at the height of the Cold War and the Korean War for helping steal the secret of the atomic bomb for the Soviet Union.

It is hard to cite the Rosenberg trial as a good example of anything. The gaudy atmosphere the press created, the excessive coaching of government witnesses, the flimsiness of the case against Ethel Rosenberg, and a defense so maladroit, in the words of Ronald Radosh and Joyce Milton, authors of The Rosenberg File , “as to border on malpractice” all combined to make this less than the finest moment in American jurisprudence.

The death penalty itself seems to have been employed mostly as a lever to make one or both of the Rosenbergs talk. Right up to the moment of execution, FBI agents were ready with a list of questions that J. Edgar Hoover wanted asked of Julius Rosenberg should he finally decide to break. One of them read, “Was your wife cognizant of your activities?”

If this was a shameful admission of the state’s willingness to electrocute an individual whose guilt it could not ascertain, the sentence became even worse when it was revealed that Judge Irving Kaufman had had numerous improper communications with the government over the punishment. Kaufman would insist that he had wrestled with his conscience and prayed for guidance. Roy Cohn, then the assistant U.S. attorney on the case, sneered that “the nearest Irving got to a synagogue was the phone booth outside the courthouse. It was not God that concerned him. He asked me how a double death sentence would play in The New York Times .”

None of this makes a pretty picture. Yet the Rosenbergs got their trial, and today few who have studied their case doubt their guilt. Moreover, they were convicted in good part by classified material on the making of atomic weapons, presented in open court. By sifting carefully through each piece of scientific evidence stolen by the Rosenberg spy ring, the prosecution was able to make its case without compromising nuclear secrets. It was even able to keep secret the so-called Venona cables, the intercepted Soviet messages that had led it to the atom spies in the first place.

Flawed trials are one of the inherent risks of a democracy. Secret arrests and indefinite military detentions are not, and the moment we change from a government of laws to one of men, we place our existence as a nation in jeopardy. No doubt many readers do not believe that George W. Bush or John Ashcroft will ever abuse the powers they have arrogated. I would only ask if they would have placed the same trust in a Bill Clinton, a Janet Reno, or even an Al Gore.

Robert Caro, in The Power Broker , his magisterial life of Robert Moses, turned to Robert Bolt’s historical drama A Man for All Seasons for an analogy to giving Moses almost unchecked power. In the relevant scene, Thomas More confronts a young protégé, William Roper, who declares that he would “cut down every law in England” in order “to get after the Devil.” More asks him, “Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?”