Terror & the Attack on Civil Liberties

Two years after the September 11 catastrophe Americans remain in great danger. The danger is of two kinds, of which the first—further terrorist attacks—is obvious. Well-financed terrorists, who live and undergo training in various foreign countries, are determined to kill Americans and are willing to die in order to do so. If they gain access to nuclear weapons, they would be able to inflict even more terrible harm.

The second, less obvious danger is self-inflicted. In its response to this great threat, the Bush administration has ignored or violated many fundamental individual rights and liberties, and we must now worry that the character of our society will change for the worse. The administration has greatly expanded both surveillance of private individuals and the collection of data about them. It has detained many hundreds of prisoners, some of them American citizens, indefinitely, in secret, and without charge or access to a lawyer. It threatens to execute some of these prisoners after trials before a special military tribunal where traditional safeguards to protect the innocent from conviction will not be available.

There has been much powerful criticism of these policies by civil liberties groups, journalists, conservatives who worry about liberty, and others. Many of these critics argue that the administration’s policies are unconstitutional or illegal under international law. I believe they are right. But the administration has been surprisingly successful in persuading federal judges to uphold its policies against legal challenge,¹ and international lawyers are divided over whether our practices violate any of our treaty obligations.² In any case, many of those who defend the government’s policies argue that questions of legality are close to irrelevant in times of national emergency: they say that, as Chief Justice Rehnquist has put it, in war the laws “speak with a muted voice.”³ We must therefore take up a different and more basic issue: whether the administration’s polices are in-defensible even if they are legal because they violate people’s fundamental human rights—rights at the foundation of the international moral order that nations must respect even when under threat. If so, then these policies are not only wrong but shameful.

1.

The administration’s USA Patriot Act, hurried through Congress almost immediately after September 11, enacted a breathtakingly broad definition of terrorism including, for example, violent acts “intended to influence the policy of a government by intimidation or coercion,” so that someone is guilty of aiding terrorism if he contributes money to any group with those aims. The act greatly expanded the power of government to conduct secret searches of private homes, permitted the attorney general to detain aliens as security threats whenever he wanted, stipulated new rules enabling government to demand records of any person’s book purchases or borrowings from bookstores and libraries, and increased the government’s surveillance authority in many other ways. A recent report by an internal Justice Department inspector alleged “dozens” of violations of civil rights in the enforcement of the act.⁴

More than 650 prisoners are now held in the administration’s detention camp at Guantánamo Bay, anonymously and under harsh conditions.⁵ Inmates at other United States detention camps, in Iraq, in Bagram in Afghanistan, and on the British-owned island Diego Garcia in the Indian Ocean, among other sites, are subjected to violent and coercive interrogation, including beatings, withholding of pain medication, sleep depriva-tion, and loud noise intended to be disorienting. There is good reason to worry that these prisoners are tortured, and that recalcitrant prisoners are “rendered” for questioning to foreign countries where such torture is routine.⁶

The military tribunals the administration threatens to use to try some of its detainees are appointed by the Defense Department, and have the power to impose sentences, including the death penalty, without the normal evidentiary safeguards of the criminal process—hearsay evidence and involuntary confessions are admissible, for example, if they would have “probative value to a reasonable person.” There is no appeal except to the secretary of defense and the president.⁷ Defendants are provided with appointed military lawyers, and permitted to hire, at their own expense, civilian lawyers who have security clearances, except that civilian lawyers may not attend hearings that the presiding officer declares closed. Legal associations have questioned whether American lawyers should participate in trials that so severely limit their power to defend their clients adequately.⁸

The government is now holding incommunicado at least three prisoners, Yasser Esam Hamdi, José Padilla, and Ali Saleh Kahlah al-Marri, in military prisons in the United States without charging them, and without allowing them access to a lawyer. Hamdi is an American citizen. The government says he was arrested by the Northern Alliance while fighting for the Taliban in Afghanistan, but it makes that claim in a cursory memorandum written by a minor official with no direct knowledge of the facts, and it refuses to support the claim with any further evidence. Padilla, also an American citizen, was arrested in Chicago as a “material witness” in the government’s investigation of the September 11 attacks, but when a court-appointed lawyer challenged his detention, and a judge ordered a hearing, the President designated him an unlawful enemy combatant, and he was denied a hearing. Marri is a Qatari student who was arrested on a charge of lying to investigators about his travels and faced an ordinary criminal trial until the President announced, last June, with no supporting evidence or argument, that he too is an enemy combatant who may be held incommunicado without charge.⁹

Zacarias Moussaoui is a French national who was arrested in the United States before September 11: the administration claims that he was the “20th hijacker” who would have joined in the attacks had he not been arrested earlier. It has prosecuted him in a federal court, asking the death penalty. The government’s principal evidence, apparently, is that he received money from al-Qaeda officials now in US custody abroad who also sent money to the hijackers. But the government has refused court orders to allow Moussaoui’s lawyers to interview those al-Qaeda officials, and has threatened that if these orders are not overridden by the courts on appeal it will prosecute Moussaoui in a military tribunal where there will be no question of allowing his lawyers access to al-Qaeda officials.¹⁰

It would be a gross mistake to suppose that these powers and acts are justified because those whom they threaten are all guilty, as Donald Rumsfeld suggested in his amazing statement that the prisoners at Guantánamo Bay are all killers. It is itself a grave compromise of human rights to assume guilt before guilt is demonstrated by fair means. Of course Americans have used unconventional and apparently unfair legal tactics before, as many other nations have done, when we have been frightened by war or by real or imagined threats of subversion. In World War II, for example, the US government herded Japanese-Americans who posed no security risk into detention camps. But the Bush administration’s policies threaten a more lasting corruption of our traditions because the danger it cites as justification will last not for a few years, as the other real or supposed crises did, but for at least a generation and perhaps longer.

Conservatives have for many years wanted government to have the powers that administration officials now claim are legitimate; September 11 may have served them only as an excuse. John Ashcroft’s Justice Department has been using its new powers under the Patriot Act, which were defended as emergency provisions against terrorists, to investigate and prosecute a wide variety of more ordinary crimes, including theft and swindling.¹¹ The government’s anti-terrorist policies may be an irreversible step to a new and much less liberal state. That makes the question I posed—do these policies violate fundamental human rights—even more urgent.

2.

Many Americans believe that the Bush administration’s security policies are a justified response to the terrorist threat.¹² They believe that the attacks on September 11 require (as it is often put) “a new balance between liberty and security.” That much-used expression suggests that we can properly judge the new policies by asking whether they are in our overall interest, as we might decide, for instance, whether to strike a new balance between road safety and the convenience of driving fast by lowering speed limits. But, with hardly any exceptions, no American who is not a Muslim and has no Muslim connections actually runs any risk of being labeled an enemy combatant and locked up in a military jail. The only balance in question is the balance between the majority’s security and other people’s rights, and we must think about that as a matter of moral principle, not of our own self-interest.

Among the most fundamental of all moral principles is the principle of shared humanity: that every human life has a distinct and equal inherent value. This principle is the indispensable premise of the idea of human rights, that is, the rights people have just in virtue of being human, and it is therefore an indispensable premise of an international moral order. Various international covenants like the Universal Declaration of Human Rights of the United Nations and the Geneva Conventions are statutory attempts to codify that basic moral principle into particular rules that can be made binding as a matter of domestic and international law. It may be a controversial question, as the Bush administration insists, whether its security measures violate the specific terms of any of the conventions to which the United States is a party.¹³ But those measures do violate the basic principle of shared humanity that underlies them all.

They violate that fundamental principle because they follow a strategy of putting American safety absolutely first, a strategy that recommends any measure that improves American security against terrorism even marginally or speculatively, or that improves the cost-efficiency or convenience of America’s anti-terrorism campaign, without counting the harm or unfairness of that measure to its victims.¹⁴ America followed that strategy in interning Japanese-Americans—the benefit to security of that wholesale detention was minimal and the damage it inflicted on its victims was enormous—and we look back on that episode with great national embarrassment.¹⁵ Of course every government has a special responsibility to look after its own citizens’ safety, and a nation may, when necessary, use violence in self-defense. But the harm it deliberately inflicts on others must be comparable to the harm it thereby prevents to its own people, and when our government shows itself ready to impose grave harm on foreigners or on suspected Americans for only speculative, marginal, or remote benefits to the rest of us, its action presupposes that their lives count for nothing compared to ours.

That contemptuous assumption is evident both in the policies I have described and in the justifications the Bush administration offers for them. It refuses to permit even minimal judicial, congressional, or other independent checks on its decisions. It places detention camps outside the United States to avoid habeas corpus petitions. It claims the exclusive right to decide who is an enemy combatant with no need to provide any substantial evidence to any court. It refuses to permit any judge to examine its opaque claims that security requires that it deny basic protections to people it accuses of crime. It keeps its detentions and its treatment of detainees as secret as possible to forestall any criticism by other parts of government, the press, private citizens, or international human rights organizations. It claims that wartime security demands this secrecy and immunity from judicial and other supervision. That is an argument made by every police state, and it may be the most self-serving and indefensible claim the Bush administration has made so far.

For though it is certainly more convenient for the administration to execute its policies in secret with no oversight from any other department of government, the suggestion that this secrecy benefits security begs the question, because that suggestion must itself be taken on trust. The alleged security benefits seem minimal in any case. Judges, senators, and representatives are American officials too; they can be trusted, and they have developed special procedures to protect classified information that have been used successfully both in legislative hearings and in terrorist trials held in ordinary courts in the past.¹⁶ The administration may argue that in war it should take no risks, however small. But when the lives and freedom of those the government has arrested are at stake, taking absolutely no risks however small means valuing those lives and freedom as worthless. That is the strategy of putting American safety not only first but absolutely first, and it is morally impermissible.

When the government does try to explain why security requires the measures it has taken, its explanation confirms that impermissible strategy. It says, for example, that it must be allowed to monitor conversations between suspected terrorists and their lawyers because lawyers may pass orders to terrorists still at large. But that danger is remote, because suspected terrorists who have been imprisoned for any substantial time are unlikely to have useful information or authority, and the danger could in any case be minimized by requiring lawyers for suspected terrorists to undergo a security check. The government says it cannot release the names of prisoners because terrorist organizations may not know which of their members have been arrested and which are still available for assignments. But it seems most unlikely that effective terrorist organizations do not know, or cannot determine, which of their members who are important enough to matter have disappeared for months or years. The administration claims that secret military tribunals are better forums for trying suspected terrorists than courts that are independent of the military because important security secrets might possibly be exposed in ordinary trials. But, as I have said, the courts have developed methods, such as closed proceedings, for dealing with sensitive security matters in the past, and there is no reason why they cannot protect official secrets in future trials.

The government says it cannot allow Padilla to speak to his lawyers because that brief break in his questioning—which has now gone on for many months and is presumably interrupted for meals, sleep, and rest anyway—might possibly affect the success of the interrogation, which might depend on coercion and on disorienting the prisoner. It is better, the government says, to hold him indefinitely incommunicado. The prosecutors refuse to allow Moussaoui’s lawyers to interview the captured al-Qaeda leaders because that might interrupt their interrogations, which have also gone on for months.¹⁷ Better to execute him without the benefit of whatever exonerating information those leaders might supply. The government says it cannot provide actual evidence that Hamdi was in fact captured fighting for the Taliban on the battlefield because preparing the records would take time and money away from other counterterrorism activities. Better that he should languish for years in a military jail.

It is significant that the American-led invasion of Iraq earlier this year was also defended by putting American safety absolutely first. The administration claimed that Iraq’s clandestine development of terrible weapons threatened our security, and that it had discovered links between Saddam Hussein’s government and al-Qaeda. It is now plain that the evidence for the first of these claims was thin and for the second nonexistent.¹⁸ But the administration says, as Deputy Defense Secretary Paul Wolfowitz has put it, that it was entitled to act on “murky” or speculative evidence to protect American security even at the cost of thousands of American, British, and Iraqi lives.¹⁹

The Justice Department has been almost explicit, moreover, in acknowledging that it ranks American safety absolutely first. In response to charges that it is overzealous in protecting security at the cost of liberty, the attorney general has said that the government makes “no apologies for finding every legal way possible to protect the American public from further attacks.”²⁰ That is a particularly revealing statement since the administration claims that the law permits almost anything in war, and that judges have little authority to review the administration’s decisions anyway.

3.

My suggestion that the Bush administration’s strategy is immoral may seem open to an important objection. It is plainly legitimate in some circumstances for a government deliberately to inflict grave injuries on some people in order to lessen the risk of harm to others, even when that risk is only statistical or speculative. We do exactly that, after all, when we use the criminal law to punish convicted criminals. We deprive them of freedom in order to deter them and others from committing crimes; we do harm to them, that is, to make each of the rest of us statistically and marginally safer. We do much the same in conventional war: we try to kill the enemy’s soldiers in order to protect our own soldiers and citizens from risks that are, for each of them, only speculative. So we cannot say, after all, that a government may never injure some people to protect others from a lesser or more speculative harm. If we can do that in combating ordinary crime and in conventional war, then why not in fighting terrorism?

This response assumes, however, that the principle of shared humanity is simply ignored or overridden in the criminal process or in conventional war. But that is not true. On the contrary, civilized nations have all evolved rules to regulate both the criminal process in their countries and their conduct in wars, and these rules are designed specifically to recognize that a nation is not entitled to care only for the interests of citizens it tries to protect. It must also show concern and respect for the lives of those it injures in trying to protect those citizens, even when that means that the protection is somewhat less effective or complete.

Our criminal process imposes harm only when that harm can accurately be described as punishment. We do not select some people to put in jail because we think they are more likely than the average citizen to commit serious crimes, though we might indeed be safer if we did that. The people we punish have selected themselves by actually violating laws that they have a legal responsibility to respect. Our procedures insist on safeguards, moreover, to ensure that those we punish are indeed guilty, that is, that they have indeed made themselves liable to that punishment, because running any substantial risk that a criminal defendant may be punished though innocent, just to improve the efficiency of the process of deterrence, would be treating the defendant’s life as expendable. Those are the safeguards that the administration now ignores.

In war we also often inflict terrible injury on some people—particularly on the soldiers of the enemy nation—in order to protect each of our own soldiers or citizens from lesser or more speculative harm. We cannot appeal to the criminal model to justify that practice because in ordinary wars we must kill soldiers who are not subject to our legal authority and who have not violated any canons of international law. We must therefore rely on a different set of arguments to show why our military operations do not violate the principle of shared humanity. In war we face massed armies who attack us, or defend themselves against us, as a single unified force. If we follow the ordinary principle of justified self-defense—if we kill particular soldiers only when killing them is the only means of preventing the certain death or serious injury of our own soldiers—then we will lose the war. We must aim to disable any enemy forces that we can strike.

But once again the laws of war forbid us from putting our own safety absolutely first. We may not target civilians, even though that might well save some of our soldiers’ lives and end our war sooner. The bombing of Hiroshima and Nagasaki, in retrospect, seems monstrous, and in any case would be ruled out now by our international commitments. Moreover, the Geneva Conventions forbid treating prisoners of war according to a safety-first principle. Prisoners must not be coerced even by means that fall short of torture to answer any questions beyond those necessary to identify themselves, even though coercive interrogation would provide valuable military information. Their equal status as human beings must be recognized by providing them with the same level of accommodation and medical treatment as is provided for the soldiers who guard them, even though that, too, is costly.

These constraints of fair criminal procedure and these humane rules of war are important not just when a nation’s constitution or its treaty obligations make them binding, but because a very large community of civilized nations thinks that either they or closely similar constraints are necessary to prevent criminal prosecution or war from becoming a crude sacrifice of some people for the sake of others, a sacrifice that would ravage rather than respect the idea of shared humanity.

However, America’s campaign against organized international terror cannot be conducted wholly within the constraints of either the crime model or the war model I have described. We should indeed pursue terrorists through any police action that is practicable, not only in our own country but through international police and intelligence networks and in collaboration with willing foreign governments. We should attempt to persuade any nation where terrorists are found to arrest them and either try them itself or extradite them to our country²¹ or to an international tribunal for trial. If it were feasible to pursue and prosecute terrorists only in this way, the crime model would be fully appropriate.

But that is not feasible. Terrorist societies are spread throughout the world and they command allegiances and resources far beyond those of even legendary criminal organizations like the mafia. They conspire to commit violence not for personal profit, as drug cartels do, but in service of an ideology that is shared by many people, often including members of the government, in the nations from which they operate. It is extremely difficult to distinguish individual terrorists from a substratum of supporting peoples and powers. It is therefore tempting to regard powerful terrorist groups like al-Qaeda as quasi nations or political powers, and to treat our actions against them as more in the character of a war than a police action.

The model of war is not fully appropriate either, however.²² War is historically a matter of status, not means: we enter a state of conventional war on a date, like December 8, 1941, and we leave it on another date, like August 14, 1945. We fight conventional wars against nations that have boundaries, and leaders with whom we can negotiate truces and surrenders, not against loose organizations whose hierarchies are secret and indistinct and whose officers and soldiers do not wear uniforms. We can conquer Kabul and Baghdad, but there is no place called Terror where the terrorists live.

The Bush administration assumes that if neither of the traditional systems for dealing with crime and war fully fits America’s campaign against terrorism, then anything goes: we can then pursue American safety first, without constraints. But that assumption is unwarranted and unprincipled. The fact that terrorism presents new challenges and dangers does not mean that the basic moral principles and human rights that the criminal law and the laws of war try to protect have been repealed or become moot. We must instead ask what different scheme—what third model—is appropriate to respect those principles while still effectively defending ourselves.

That immensely important project should now engage international lawyers, police specialists, military analysts, historians, politicians, and philosophers of different traditions and cultures. Perhaps reflection, debate, and experience will provide some consensus on a new legal system for terror that can one day be encoded in some new set of international conventions. In the meantime we must do the best we can, not by abandoning all of the constraints of the two traditional models but by trying to capture the principles those constraints serve in a new model that incorporates aspects of each of the others.

That new model might require a nation to first pursue international terrorist organizations that have harmed its people through police action, either on its own or in collaboration with international or foreign police units, unless such police action is, or becomes, inadequate. A terrorist organization might control territory of its own so that no local police action can reach it, for example, or a local government might be unwilling or unable to attack the organization effectively. In that event a nation may mount a military campaign against the organization even if it must invade a foreign country, such as Afghanistan, whose regime is protecting it.

But once a nation has taken prisoners in such a campaign, whether by capture on a foreign battlefield or by arrest at home or elsewhere, it must follow a different procedure. It must choose, case by case, which of the two models I described it then wishes to pursue. Within a reasonable time after capture—say, two months—it must decide whether a prisoner is to be treated as a prisoner of war or as a suspected criminal. (It may later revise its decision if new evidence requires.)

That decision must be made not in accordance with a defensive reading of the rules of the Geneva Conventions, which were written with more conventional wars in mind, but in the spirit of the principles behind those rules. Since terrorist organizations do not have national identities or uniforms, for example, it cannot be decisive, in determining whether a detainee is a criminal and not a prisoner of war, that he wears no uniform. If the government decides to treat any prisoner captured in battle as a criminal rather than as a prisoner of war, its decision must be reviewed by a “judicial” tribunal as required by the provisions of the Geneva Conventions that almost all civilized nations have accepted. If it decides to treat anyone it captures not on a battlefield but in an ordinary police action as a prisoner of war rather than as a criminal, then it must permit him to challenge that classification, whenever practicable, through a habeas corpus petition in a federal court.²³

Those detainees the government designates as prisoners of war must be treated in accordance with the humane rules of those conventions. They must, for example, be given accommodation and medical care equal to that of the troops guarding them, and subjected to no form of interrogation beyond what those conventions permit. The conventions permit a nation to try a prisoner of war for war crimes, such as willful killing of civilians, that would presumably include terrorist attacks in the United States. But if any prisoner of war is charged with such a crime, the conventions require that he be tried in a military court whose rules give him all the procedural protections that members of the American military have who are court-martialed. (The rules of American courts-martial are much more protective of the accused than the military tribunals in which the Bush administration proposes to try foreigners. The former severely restrict the admissability into evidence of hearsay and involuntary confessions, for example, and provide for appeals to an appellate court that includes civilian judges, and then to the Supreme Court.) The conventions’ rule that prisoners of war may be detained until the end of hostilities cannot be plausibly applied in these circumstances, however, because that rule plainly presumes that wars begin and end through discrete formal acts. The US “war” against terrorism can have no formal end: it may last at least a generation. Congress must therefore stipulate a maximum period—say, three years—for which anyone designated a prisoner of war in the campaign against terrorism may be held, though Congress would retain the power, so long as organized international terrorism remains a serious threat, to extend the period, either in particular cases or in blanket extensions of a stipulated maximum period, on a showing of necessity and after suitable debate.

Those the government designates suspected criminals need not be treated as prisoners of war. But their treatment must be governed by the ordinary procedures and protections of our criminal practice, again modified as necessary to fit the special circumstances. Suspects must be informed of charges against them and given access to lawyers and the benefits of a judicial process. Ordinary federal courts, which, as I have said, have the power to protect classified information, should be sufficient. But Congress might, if it thought necessary, provide specialist courts for such trials in the exercise of its constitutional power to create courts and define their jurisdiction. Any specialist courts must, however, respect the crucial separation of judicial and executive power; their decisions must be made subject to review by higher courts independent of the military and the executive branch. If the government claims that security requires that conversations between a suspect and his attorney must be monitored, a judge must review and approve that claim.

The specific cases I have mentioned earlier can be used to illustrate this new model. The government might declare Moussaoui a prisoner of war, citing his admission that he belongs to al-Qaeda. It might then detain him subject to the conditions of the Geneva Conventions, though he would have to be released in due course or tried for war crimes under rules similar to those used in American courts-martial, which would presumably permit his lawyers to interview any witnesses essential to his defense. Or the government might continue to declare him a criminal, and then subject him to the prosecution and protection of the familiar criminal law, which would also mean that he was permitted to interview essential witnesses. The government could continue to refuse to allow his lawyers access to the captured al-Qaeda officials, that is, only if it treated him as an ordinary prisoner of war and did not seek to try him for any offense that would make access to those officials necessary for his defense. It is not unreasonable to ask our government to make this choice. Criminal prosecutors must often decide whether to forgo prosecution of a particular suspect when prosecution might compromise continuing investigations, and Moussaoui could in any case be detained as a prisoner of war.

The administration would be forced to make similar choices about the other detainees I have mentioned. It may fear that it does not have sufficient evidence to convict Padilla of any crimes in an ordinary criminal court. If so, then it must release him unless it can show that he had sufficient contacts with al-Qaeda to be classified as a prisoner of war, in spite of the fact that he was arrested in Chicago and not on any foreign battlefield. If so, then it must detain him, not incommunicado in solitary confinement in a military brig, but in circumstances consistent with prisoner-of-war status.

The government must make that choice about Hamdi as well. True, military officers cannot be asked to prove in court that every person they capture on the battlefield is in fact an enemy soldier. (It would not be unrealistic, however, to make an exception for those whose presence on the battlefield might be thought surprising, like American citizens.) But even if we accept the principle that courts cannot scrutinize the capture of battlefield prisoners, it hardly follows that the government may lock up anyone it captures on a battlefield indefinitely, without charge, and keep him incommunicado. If the administration prosecutes Hamdi as a criminal, it must allow him access to counsel and the normal protections of the criminal process, and it must provide genuine evidence against him. If it does not, then it can detain him only in the different status of a protected prisoner of war.

The Guantánamo detainees are also being held indefinitely and in secret, with no access to lawyers, under circumstances that would be intolerable even if they were convicted criminals. But they have not been charged with crimes or given the benefit of legal advice or process. If the detainees are prisoners of war, they must be treated as such. If they are suspected criminals, they must be treated as such. The government must choose, once again, not because it is required to do so by treaties but because its failure to do so treats the lives of the detainees with impermissible contempt.²⁴

Rights would be worthless—and the idea of a right incomprehensible—unless respecting rights meant taking some risk. We can and must try to limit those risks, but some risk will remain. It may be that we would be marginally more secure if we decided to care nothing for the human rights of anyone else. That is true in domestic policy as well. We run a marginally increased risk of violent death at the hands of murderers every day by insisting on rights for accused criminals in order to keep faith with our own humanity. For the same reason we must run a marginally increased risk of terrorism as well. Of course we must sharpen our vigilance, but we must also discipline our fear. The government says that only our own safety matters. That is a counsel of shame: we are braver than that, and have more self-respect.²⁵

—October 7, 2003