Our Nation Unhinged

Reviewed by Ben Pesta

The suppression of civil rights as a response to crisis is as American as cherry pie (apologies to H. Rap Brown). We?ve done it since the founding of the republic, and that is one of the messages of Peter Jan Honigsberg?s Our Nation Unhinged: The Human Consequences of the War on Terror. Federalist concerns about the threat of war with France in the wake of the XYZ Affair (and the political threat posed by Thomas Jefferson?s Democratic-Republicans) led to passage of the Alien and Sedition Acts in 1798. Lincoln suspended habeas corpus during the Civil War. During World War I, the government prosecuted critics of the war, especially if they were also socialists or labor organizers. And during World War II, Franklin Roosevelt authorized the internment of Japanese Americans without criminal charges.

Honigsberg?s other message is that the administration of George W. Bush was exceptionally?almost gleefully?energetic in its ?emergency? abandonment of constitutional protections.

The author, a law professor at the University of San Francisco, enumerates three mechanisms the Bush administration used to accomplish its assault on our civil liberties: justifying the use of torture (called ?intensive interrogation? or ?enhanced interrogation?) as an instrument of national policy; asserting that the Constitution gives the president, in his capacity as commander in chief, power to disregard Congress and the courts; and creating the term enemy combatant to identify people whom it wished to imprison without charges.

?Enemy combatant sounds like a legal term,? Honigsberg writes, ?but it is not.? It is instead a clever piece of copywriting, something on the order of: ?If erection persists for over four hours, call a doctor.? A lawful combatant?a uniformed soldier?has rights under the Geneva Conventions. An unlawful combatant?a captured spy or saboteur?can be executed after a trial by a military tribunal but still must be treated humanely. But an enemy combatant is legally a nonperson, someone who can be told to smile for the camera at Abu Ghraib, or who can be held without charges for years at Guantanamo.

Lawyers could be found on both sides of the issue regarding the treatment of detainees. On the discreditable side, John Yoo, UC Berkeley professor and currently a visiting professor at Chapman University School of Law, wrote a series of ?torture memos? for the Justice Department?s Office of Legal Counsel (OLC) that justified torture by narrowing its definition.

Honigsberg writes that Yoo?s memos were written ?as if his analysis is effortless and without doubt.? Asked the reason for this by an interviewer, Yoo answered that he wanted to avoid being ?vague.? Of course, the issue of the permissibility of torture is hardly clear cut?at least not on Yoo?s side of the argument. ?By not providing a reasoned opinion accurately identifying the state of the law,? says Honigsberg, ?Yoo supplied the administration with what it needed: an appearance and, essentially, a certification of legality. Yoo?s advice made it easy for the highly regarded OLC to immunize CIA agents and the military.?

Yoo himself has no such immunity. On June 12, 2009, U.S. District Judge Jeffrey White ruled that Jose Padilla, now serving a 17-year sentence for conspiracy to provide money and supplies to Islamic extremists and held in a Navy brig for nearly four years without charges, could try to prove that Yoo had stepped outside of a lawyer?s proper role and became an architect of a policy that violated his rights.

Yoo?s boss, Jay Bybee, then of the DOJ and now on the Ninth Circuit, signed off on the torture memos. The New York Times has called for Bybee?s impeachment.

Yoo?s procrustean logic was custom-tailored for a president who once said: ?And that [Geneva Convention] Common Article III says that, you know, there will be no outrages upon human dignity. It?s like?it?s very vague. What does that mean, ?outrages upon human dignity???

On the opposite side, credit and honor go to such lawyers as Candace Gorman, Thomas Wilner, Erwin Chemerinsky, Steve Yagman, Charles Swift, and the others who represented detainees, usually without charge and sometimes over the opposition of their colleagues. Their advocacy on behalf of the friendless and the powerless is consistent with the finest tradition of our profession.

Our Nation Unhinged is an important book. It documents the sorry tale of how America abandoned the moral high ground to become the operators of Guantanamo and the Black Sites, our secret detention centers on foreign soil. After September 11, 2001, the United States forsook the rule of law in the interest of obtaining "results." Predictably, we wound up with neither.


Ben Pesta, a white-collar and criminal defense lawyer in Century City, has written for Esquire, Playboy, Rolling Stone, the Los Angeles Times, and the American Bar Association Journal.

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