Securing Liberty Introduction

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Securing Liberty Introduction

  1. 1. IntroductionEverything ChangedThe terrorist attacks of September 11, 2001, altered the Americanlandscape in many ways. Approximately three thousand liveswere lost. New York City’s two tallest buildings fell. Within amonth, the United States was bombing Afghanistan, beginninga war that continues a decade later. At home, Congress enactedthe USA PATRIOT Act within weeks of the attack, granting theexecutive broad new surveillance powers while eliminatingjudicial review and other safeguards. In an effort to coordinatedomestic security operations, the Department of HomelandSecurity was formed, absorbing part or all of 22 different gov-ernment agencies; it is now the third-largest federal bureaucracyin the United States, after the departments of Defense and Vet-erans Affairs. In short, the “national security state” was born,as untold resources were redirected to the task of making thenation safe from future attacks. On May 1, 2011, U.S. forceslocated and killed Osama bin Laden, but the transformationshe triggered will long outlive him — as will, apparently, the warin Afghanistan. The world changed as well. The United Nations SecurityCouncil approved resolutions requiring nations around the worldto adopt and implement counterterrorism measures, includingsystems to track and stem the flow of funds to organizationsand individuals that the Security Council declared to be “ter-rorist” — without affording those designated any opportunityto challenge the label. The United States was targeted on Sep-tember 11, but other mass attacks followed — in Indonesia, the
  2. 2. United Kingdom, Spain, Jordan, and India, to name only a few. Many nations were prompted to strengthen their own counter- terrorism laws. The United Kingdom, for example, authorized indefinite detention without charge of foreign citizens suspected of terrorist involvement — a measure its own highest court sub- sequently declared incompatible with the European Convention on Human Rights. In the wake of the attacks, defenders of expanded govern- ment power to fight terrorism argued that the attacks were a wake-up call, demonstrating to the United States and the world the increased vulnerability of citizens to deadly attacks on a large scale carried out by small groups of committed individu- als. Commentators and government officials raised the specter of terrorists employing chemical, biological, or nuclear weap- ons. Defending against such catastrophic threats posed new challenges. Many nations have long had access to weapons of mass destruction, but, as they are also responsible for protect- ing civilian populations, they can presumably be deterred from using such weapons by threats of retaliation; non-state terror- ist groups have no such constraints. And suicide bombers have shown that desperate individuals will sacrifice even their own lives to strike a blow for their cause. The potential threats seem limitless, and the vivid and horrifying images of September 11 made what had been previously unthinkable all too imaginable. The United States’ Response The United States responded to the attacks by adopting what then-attorney general John Ashcroft called a “paradigm of pre- vention.” He argued that it was not enough to capture terrorists after the fact, we must seek to prevent the next attack. To do securing l i b e rt y
  3. 3. so, Ashcroft argued, the government had to act aggressivelyagainst all who might pose a threat, in order to incapacitatethem before they are able to act against us. Many were per-suaded by this view, and it soon became conventional wisdomthat the FBI and other law enforcement agencies had spent toomuch time investigating completed crimes and not enough timegathering intelligence to forestall future crimes. The charge isoverstated — law enforcement has always been as interested inpreventing and deterring crime before it happens as in catch-ing criminals after the fact. And state and federal laws have longmade it a crime to plan for or prepare to commit crimes, so therewas never a need to wait until a bomb exploded to bring criminalcharges. After the attacks of September 11, however, the notionthat those bound to protect the nation had failed to “connect thedots” in advance led inexorably to the idea that the governmentmust become “forward-leaning” in its approach to terrorism. The impetus toward prevention is understandable. All otherthings being equal, preventing a terrorist act is preferable toresponding after the fact — all the more so when the threatsinclude weapons of mass destruction and the attackers aredifficult to detect, willing to kill themselves, and seeminglyunconstrained by any considerations of law, morality, or humandignity that we can recognize. There is nothing wrong withprevention itself as a motive or a strategy — think, for exam-ple, of preventive medicine. In the realm of ordinary criminallaw enforcement, preventive policing, which emphasizes directpolice involvement with communities to identify and solvepotential problems before they lead to criminal conduct, is sen-sible, effective, and often more humane than imposing lengthyprison sentences. Thus, prevention is a perfectly acceptable goalin many contexts, and is surely permissible in counterterrorism. in t r   u c t i n 
  4. 4. Moreover, there are many ways to deter or prevent ter- rorism that pose little or no concerns from the standpoint of civil liberties. Airport metal detectors and X-ray machines are preventive measures, as are concrete barriers and increased security around government buildings and other vulnerable targets. More careful screening of individuals and cargo enter- ing the country is also a preventive measure. Expanding and improving our ability to analyze and understand intelligence data may help identify and interdict threats before they can be carried out. Developing positive ties to communities and nations that might have individuals sympathetic to terrorist causes may simultaneously reduce the likelihood that such individuals will act on their sympathies and help to identify potential bad actors so that they can be monitored. Providing foreign aid to countries with dire economic and humanitarian needs may reduce the likelihood that extremists and terrorists will find fertile recruit- ing ground among desperate people. Many of these preventive measures are relatively uncontroversial, in large part because they do not necessitate substantial sacrifices with respect to lib- erty, privacy, or equality. The Perils of Prevention In the wake of 9/11, however, the United States did not limit itself to such responses. It also sought to employ the government’s most coercive powers — the power to monitor, abduct, detain, interrogate, and even kill — in “preventive” fashion, using these tactics against individuals and groups based on speculation about what they might do rather than evidence about what they had done. When a democratic state deploys its harshest coer- cive measures based on speculative predictions about future securing l i b e rt y
  5. 5. behavior, it all too often sacrifices some of its most fundamen-tal commitments to the rule of law. In the absence of a focus onobjective conduct, for example, suspicion may be predicated onrace, ethnicity, or religious affiliation, leading to discriminatoryprofiling. Because accurate predictions are so difficult, mistakeswill be made, subjecting innocents to wrongful surveillance,detention, or worse. Fair process will be short-circuited, as it isdifficult to square with predictive guesswork rather than objec-tive assessments of fact. Much of the Bush administration’s “war on terror” was explic-itly justified in preventive terms. He launched a war, the mostextreme deployment of coercive force, against Iraq on preven-tive grounds. Iraq had neither attacked us nor threatened toattack us, but President Bush argued that Saddam Hussein mighthave weapons of mass destruction that he might at some pointgive to terrorists who might use them against us. It turned outthat Saddam Hussein didn’t have such weapons, and there wasno evidence that he would have turned the weapons over to ter-rorists even if he had them — but using the preventive rationale,we declared war on pure (and baseless) speculation. On similar preventive grounds, President Bush authorized theNational Security Agency (NSA) to intercept millions of phonecalls between persons suspected of being associated with alQaeda abroad and individuals here at home, without judicialapproval and in apparent contravention of a federal criminallaw. He created secret prisons run by the CIA into which theUnited States “disappeared” suspected terrorists — abductingthem, detaining them, and denying to the world that they werein U.S. custody. To get high-value suspects to talk, President Bushauthorized the CIA to use cruel, inhuman, and degrading meth-ods, and torture itself — including extended sleep deprivation, in t r   u c t i n 
  6. 6. stress positions, slamming suspects into walls, and waterboard- ing (temporarily asphyxiating an individual by pouring water over a towel wrapped around his mouth and nose, creating the sensation of drowning). He authorized the CIA to kidnap other suspects and “render” them to security services in countries, Egypt and Syria among them, known for routinely using torture during interrogations. He opened a prison camp at Guantá- namo Bay, where the military held more than 775 men, many without objective evidence that they were fighting against us. The president initially refused to acknowledge that they had any legal rights, much less access to a U.S. court to challenge the legality of their detention. He established “military commis- sions” in which military officers could try and execute terrorists for war crimes based on secret evidence that the defendant had no opportunity to see or rebut — and even on the basis of evidence obtained through torture. President Bush contended that he could authorize these and other actions as commander in chief even where Congress had made them illegal. And he insisted that the Geneva Conventions — international treaties governing the treatment of civilians and combatants in armed conflict — did not protect fighters for al Qaeda or the Taliban at all. All these measures were undertaken in the name of pre- venting another terrorist attack — and, indeed, by the end of President Bush’s second term, no more terrorist attacks had been perpetrated on U.S. soil. The President Retreats Many of these measures proved highly controversial — and the president was never able to prove that they were, in fact, nec- essary to foil a follow-up terrorist attack. Indeed, by the time securing l i b e rt y
  7. 7. President Barack Obama succeeded him, President Bush hadbeen forced to retreat on many of these policies, without anyapparent increase in terrorist attacks. In Rasul v. Bush (2004)and Boumediene v. Bush (2008), the Supreme Court rejected hiscontention that he could detain suspected terrorists at Guantá-namo Bay indefinitely without any access to court to challengetheir detentions, and ultimately ruled that not even the presi-dent and Congress acting together could deny court review tothe detainees. In Hamdan v. Rumsfeld (2006), the Court declaredthat President Bush’s military commissions were illegal underdomestic law and the Geneva Conventions, dismissing thepresident’s contention that the Conventions do not apply to theconflict with al Qaeda. When a secret Justice Department memo authorizing water-boarding and other illegal interrogation tactics was leaked to theWashington Post in 2004, the administration quickly rescinded thememo as it apparently could not defend in public what it haddone in secret. (As detailed in Chapter 4, however, the JusticeDepartment continued to authorize illegal interrogation tacticsin secret even after appearing to abandon them in public.) Con-gress, under the leadership of Senator John McCain, forbadethe use of cruel, inhuman, and degrading treatment against alldetainees. International condemnation of rendition to tortureseems to have led the Bush administration to halt that practice,although the secrecy surrounding the program makes certaintydifficult. After the NSA spying program’s existence was dis-closed, the president halted it until Congress amended the lawto authorize electronic surveillance with greater oversight. AndCongress added checks and balances to some of the most con-troversial PATRIOT Act provisions. Even after all these reformswere adopted, there were no further terrorist attacks on theUnited States, calling into question the administration’s claims in t r   u c t i n 
  8. 8. that the extreme measures it initially adopted were actually nec- essary for U.S. security. President Obama—Continuity or Change ? When President Obama took office in 2009, he introduced further reforms to bring our security policy in line with our com- mitments to liberty, equality, human dignity, and the rule of law. On his second day in office, he issued executive orders prohib- iting the use of “enhanced interrogation techniques,” the Bush administration’s euphemism for the torture and cruel treatment that it had authorized. He ordered the closure of the CIA’s secret prisons, and promised to close the prison camp at Guantánamo Bay within a year. Shortly thereafter, he ordered a temporary halt to military commissions at Guantánamo, appointed an interagency task force to review all Guantánamo cases, and released several previously secret Justice Department memos that had continued to authorize coercive interrogation tactics. Most important, President Obama sounded a very different over- all theme on national security, arguing in a speech at the National Archives in May 2009 that the United States can and must defend itself within the confines of the rule of law and that our country will be stronger, not weaker, for doing so. Whereas President Bush had dismissed legal restrictions as an obstacle to be dis- regarded in the name of security, President Obama insisted that we must pursue security in ways that also preserve our liberty. As is often the case, however, that goal proved easier to proclaim than to accomplish. Even when Obama’s own party controlled both houses of Congress, legislators objected to moving any Guantánamo detainees inside U.S. borders, even if the detainees would be housed in the most secure facilities. securing l i b e rt y
  9. 9. Congress repeatedly barred the president from spending anymoney to relocate Guantánamo detainees to the United States,effectively blocking his effort to close the camp — a goal every-one from former President Bush to Defense Secretary RobertGates and former Defense Secretary Colin Powell agreed wasdesirable from a foreign policy standpoint. When AttorneyGeneral Eric Holder announced plans to try men accused ofplanning and facilitating the 9/11 attacks, including the allegedprincipal architect of the attack, Khalid Sheikh Mohammed, ina New York civilian courtroom, the plan was roundly criticized.Congress ultimately barred a civilian criminal trial, and Holderwas forced to charge Khalid Sheikh Mohammed before a militarycommission in Guantánamo — an untested forum that may wellcause many more complications than a civilian trial would have. Meanwhile, President Obama continued some of his prede-cessor’s controversial policies. He asserted the right to detainsuspected al Qaeda and Taliban members without criminal trial.He invoked the “state secrets privilege” in several lawsuits seek-ing to hold U.S. officials accountable for unconstitutional andcriminal conduct, including rendition to torture. He opposedcourt review of those detained at Bagram Air Force Base inAfghanistan, even though some of the detainees there, like manyat Guantánamo, were captured in foreign lands far from any bat-tlefield. He defended as constitutional a federal law that makesit a crime to advocate for human rights and peace if one doesso in conjunction with a group designated as “terrorist” — evenif the individual’s purpose in doing so is to encourage the groupto forgo violence and to pursue peaceful avenues for politicalchange. His administration also opposed efforts to reform theUSA PATRIOT Act to implement greater safeguards for Ameri-cans’ privacy, and authorized the “targeted killing” of radicalcleric Anwar al-Awlaki, a U.S. citizen far from any battlefield, in t r   u c t i n 
  10. 10. on grounds that he was associated with al Qaeda and planning future attacks. History confirms that sacrificing liberties in times of crisis is not a partisan issue. Republican president Abraham Lincoln, one of the most revered champions of equality and liberty in all of U.S. history, unilaterally suspended the writ of habeas corpus during the Civil War, thereby denying those detained by Union forces any access to court to challenge their detention. The Constitution grants the power to suspend habeas corpus to Con- gress, not the president, but Lincoln argued that the emergency justified his otherwise illegal action. President Franklin Delano Roosevelt, a progressive Democrat, was responsible for intern- ing in camps some 120,000 people of Japanese descent during World War II, solely because of their Japanese ancestry. Some 70,000 of them were American citizens. None were individually found to pose a risk of espionage or treason. President Bill Clin- ton, a Democrat, supported and signed the Anti-Terrorism and Effective Death Penalty Act of 1996, a law that radically restricted habeas corpus review for all prisoners, criminalized speech as a form of “material support to terrorism,” and established depor- tation for foreign nationals based on secret evidence that they had no opportunity to confront or rebut. Does Sacrificing Liberty Increase Security? Thus, history suggests that balancing liberty and security is no simple matter. Reasonable people will value liberty and secu- rity differently and therefore will be inclined to adopt different trade-offs between the two. Moreover, the very idea of “bal- ance” is misleading; the values sought to be weighed against one another are incommensurable. How does one quantify the securing l i b e rt y
  11. 11. value of liberty, of privacy, or of equal treatment as measuredagainst the costs of a terrorist attack? More to the point, sacrificing rights often does not in factincrease security, and may make us less safe. When PresidentBush authorized torture, for example, he argued that his inter-rogators obtained information that they could not have learnedusing lawful, noncoercive interrogation tactics. But the CIA’s owninspector general, reviewing the program, found no evidencethat the tactics had resulted in information that could not havebeen gleaned through legal means. As Ali Soufan, a seasoned U.S.interrogator, argues in Part 2, developing rapport is a much moreeffective technique for obtaining reliable information. Thereis no conclusive evidence that coercive interrogation worked. What we can and do know is that the strategy of coerciveinterrogation has entailed tremendous costs. The interrogationpolicy eventually led to the Abu Ghraib torture scandal, in whichall the world saw graphic photographic evidence of the demean-ing ways that U.S. soldiers treated Arab and Muslim detainees.Those revelations, in turn, provided a powerful recruiting toolfor al Qaeda, as extremist websites prominently featured theimages to stoke anti-American sentiment around the world.Polls suggested that, in short order, the United States went frombeing the object of the world’s sympathy on the day after 9/11to a country more widely resented than ever. In addition, the desire to use evidence obtained by tortureto hold terrorists accountable led the Bush administration toestablish military commissions that fell drastically short of fun-damental fairness guarantees. A fair trial cannot be based onevidence obtained through torture, period. Eventually, Con-gress reformed the commission rules to make clear that coercedconfessions could not be used. But that, in turn, creates major in t r   u c t i n 
  12. 12. obstacles to holding Guantánamo detainees accountable for their alleged wrongs. Once a defendant has been tortured, try- ing him becomes extremely difficult because fundamental rules of due process and fair play demand that the government not benefit in any way from information it learned through its tor- ture, and it is often difficult or impossible to establish that none of the government’s evidence is tainted. Are We Safer? Has the “war on terror” in general made us safer or more vul- nerable? It is difficult to say. But there are reasons to doubt that many of the measures have been effective. According to the July 2007 National Intelligence Estimate, al Qaeda by that time had fully reconstituted itself in Pakistan’s border regions. Terrorist attacks worldwide grew dramatically in frequency and lethality after 2001, with suicide bombings particularly on the rise. New terrorist groups, from al Qaeda in Iraq to the small groups of young men who bombed subways, buses, and commuter trains in London and Madrid, have multiplied. And only a small number of individuals have been convicted of engaging in or conspiring to engage in a terrorist act since 9/11. Consider the measurable results from one of the most exten- sive domestic preventive campaigns conducted by the United States in the wake of 9/11. Using immigration law, the Bush administration after 9/11 called in 82,000 foreign nationals for fingerprinting, photographing, and “special registration” simply because they came from predominantly Arab or Muslim coun- tries — on the theory that it might find a terrorist. It sought out another 8,000 young men from the same countries for more extensive FBI interviews, again based solely on the fact that they securing l i b e rt y
  13. 13. were young men who had come from predominantly Arab andMuslim countries. And immigration officials placed more than5,000 foreign nationals, virtually all Arab or Muslim, in preven-tive detention in the first two years after 9/11, again in hopesthat they would identify a terrorist. Yet not one of these individu-als stands convicted of a terrorist crime. The government’s record,in what is surely the largest campaign of ethnic profiling sincethe Japanese internment during World War II, is 0 for 95,000. But how can we account for the fact that the United Stateshas been free of a terrorist attack since 9/11? One cannot ulti-mately prove what combination of factors contributed to thisfortunate result. Could it have been the military response inAfghanistan (notably not a “preventive war,” but an act of self-defense)? Information obtained from lawful surveillance andinterrogation? Information obtained from illegal surveillance andinterrogation? Increased airport security measures? Increasedspending on intelligence analysts, and increased coordination ofintelligence agencies? The detention of suspected al Qaeda andTaliban fighters at Guantánamo and Bagram? All of the above?Some of the controversial preventive measures undertaken mayhave helped disrupt a terrorist attack, identify a potential ter-rorist, or deter someone from committing a terrorist act in thefirst place. We can never know for sure.Debating Our FutureThis is what makes the debates that this book seeks to fosterso challenging. The competing values at stake are vital, butimpossible to quantify. So much that we might want to knowis unknowable. Yet we must nonetheless act — and judge ouractions — in the face of this uncertainty. At the end of the day, the in t r   u c t i n 
  14. 14. debates must be guided by an exploration of our fundamental values. As Senator McCain said in opposing the use of any cruel, inhuman, or degrading interrogation tactics against suspected terrorists, it’s not about who they are; it’s about who we are. This volume highlights six issues for debate and presents competing views on each issue. It asks whether ethnic or reli- gious profiling of Arabs and Muslims is constitutional or effective. It explores the question of when, if ever, a state official is justified in employing torture or otherwise illegal coercive interrogation tactics in an attempt to avert an impending disaster. It exam- ines whether the United States is obliged to investigate and consider criminal prosecution of those who authorized torture for intelligence-gathering purposes. It examines the issue of pre- ventive detention in the conflict with al Qaeda, asking whether the United States should be required to try al Qaeda members on criminal charges or release them, or whether it is appropri- ate to detain them in military custody without criminal charges. It uses the controversy over President Bush’s authorization of sweeping warrantless electronic surveillance to assess the extent and limits of the president’s executive power as commander in chief: Can the president ignore valid criminal laws if he believes they interfere with his execution of the war effort? Finally, the volume examines the question of what Christian Parenti calls the surveillance society: Has the United States sacrificed funda- mental protections of privacy in essentially unwarranted ways or has it simply adapted to the increased threat that terrorism poses? Reasonable people can and have come down on opposite sides of all of these questions. They are hard questions without obvious answers. Your task is to explore their nuances, to rec- ognize the difficult issues that lurk behind each of the debates, and to struggle, for yourself, with finding the answer that would reflect the United States at its best. securing l i b e rt y
  15. 15. The United States and the world after 9/11 will never be thesame. The attacks of that day have compelled us to confrontnew tensions between liberty and security for a decade. Thedebates will continue as the current generation of high schooland college students grows up, graduates, and takes on theresponsibility of leadership and stewardship that our democracyassigns to “We the People.” It is all the more essential, there-fore, that young people grapple with these issues. The debatescovered here will continue to be defining issues for generationsto come, and the choices we make will determine the kind ofcountry — and world — we live in. in t r   u c t i n 

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