Inscribed on the base of the Statue of Liberty are these words of Benjamin Franklin: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Americans would surely do well to heed these words as the war against terrorism proceeds, both abroad and at home.
Yet certain voices have been quick to claim that many of the measures taken to prosecute the present war do in fact run roughshod over essential liberties. In the New York Times, Wiliam Safire, joined by the paper’s editorialists, has made dour pronouncements about President Bush’s post-September 11 assumption of “dictatorial powers.” Imad Hamad of the American-Arab Anti-Discrimination Committee has decried government plans “to interrogate no less than 5,000 young Arab men identified solely on the basis of their age, gender, and national origin.” Robert Kuttner, co-editor of The American Prospect, has conjured images of police brutality and “coerced confessions,” and compared domestic security measures to the Star Chamber. The Village Voice even let slip a sly suggestion that government officials are considering state-sponsored torture in the name of national security.
But are these charges, and others leveled at Congress and the president, true? Have we in fact anted up our “essential liberties” as the cost of achieving a fleeting, illusory victory in the war on terrorism?
Lurking in Shadows
It is unfortunate that such questions should even be asked, for the answer is plainly that we have not. This fact has not fazed the president’s critics, who, not having before them proof of fundamental rights denied, have dredged up past abuses as if they somehow prove abuses are occurring in the present. Editorialists have been lurking in historical shadows ranging from the internment of Japanese Americans during the Second World War to President Lincoln’s Civil War suspension of habeas corpus.
To overwrought observers, these past incidents somehow demonstrate that government, like a relentless amoeba, seeks to consume civil liberties and spit out tyranny always and everywhere, without exception. In a paranoid and obscure non sequitur, Kuttner inveighs against military tribunals (or torture, or whatever–one can’t be too sure) by evoking the specter of past police brutality: “Remember the Rodney King beatings? Until the Warren Supreme Court protecting the rights of criminal suspects, beatings and coerced confessions … were common.”
A cursory glance at just a few of the government’s more noteworthy moves dispels the delusions that the president is a dictator and that we live in a tyranny. Justice Department plans to question 5,000 Arab men between the ages of 18 and 30 amount to unwarranted and discriminatory “interrogations,” claim some–a classic case of the coercive hand of government seizing upon the present crisis to increase its power. The word “interrogation” itself, uttered in grim undertones, brings to mind federal agents rounding up members of a particular ethnic group and shining bright lights in their faces while grilling them with questions crafted to assume guilt.
It’s a chilling image, but one far from the truth, which turns out to be much tamer. The Justice Department has indicated that the interviews are voluntary and that none of those being interviewed are suspects. As for the claim that the 5,000 were chosen “solely” because of their age, gender and national origin, this is clearly a non-starter, since 5,000 represents less than one-half of one percent of all the Arab males in the country; clearly, there are other criteria that come into play. And as the whole point of the process is to track down those who may have unknowingly come into contact with either the September 11 hijackers or members of terrorist “sleeper cells,” it is only common sense that investigators would want to canvas the communities and circles they are known to travel in.
Further, the interviews are largely being conducted according to the discretion of local police departments, according to local laws. In Michigan, where a large number of the interviewees live, Detroit Police Chief Charles Wilson said that diverting officers to conducting the interviews was low on his list of priorities, and that he would go through leaders in the Arab-American community to conduct the interviews in any case. In several cases, the federal government has met local resistance and has been forced to compromise, an excellent demonstration of the checks and dispersion of power built into our system to prevent the very tyranny we now supposedly suffer under.
The Truth on Tribunals
Perhaps nothing has caused more hand-wringing among the civil liberties set than the president’s order establishing military tribunals for non-citizens engaged in terrorist activity. In this move, announce the nay-sayers, we can see the first steps of a Leviathan state slowly to enmesh the people in a net of authoritarianism, if not outright tyranny. In Kuttner’s words, military tribunals mean the suspension of “due process” for the 17 million non-citizens who could have some connection to a terrorist organization or one of the many shadow organizations that front for them. Patricia Williams writes in the Nation that those 17 million “are now effectively living under martial law.”
Again, the truth about the president’s order is much less dramatic than the Orwellian fictions being written about it. The claim that the tribunals put all non-citizens under martial law is ridiculous on its face. “The order covers only foreign enemy war criminals; it does not cover United States citizens or even enemy soldiers abiding by the laws of war,” says presidential counsel Alberto R. Gonzales in the New York Times.
In fact, the only charges that can be brought to a military tribunal under the order are offences against the international laws of war, like targeting civilians, refusing to bear arms openly, or using civilian populations as a shield. Thus, the order only takes aim at terrorist cells and those who knowingly aid or abet terrorists. These measures are no more stringent than those taken against clandestine foreign agents, such as Confederate spies during the Civil War or Nazis in the Second World War. In fact, they are significantly more restrained.
Though it is a subtlety perhaps lost on its critics, the military tribunal order is a work-in-progress. Rules establishing how the tribunals will operate have not yet been established, and no one has been brought up on charges before one. In fact, the first al-Qaeda terrorist to be indicted in connection with September 11 will be tried in a criminal court.
Despite some misgivings and legitimate criticisms of it, constitutional scholar Laurence Tribe, in the New Republic, expressed support for the constitutionality of the core of the executive order. Kuttner’s and others’ assertions of the order’s violation of “due process,” it turns out, have no weight. According to Tribe, “due process” in wartime in fact “permits trying unlawful combatants for violation of the laws of war, without a jury or many of the safeguards of the Bill of Rights,” provided the tribunals are impartial. And the same questions about the impartiality of a military tribunal could just as easily be applied to any jury, for civilians and soldiers alike find themselves in the crosshairs of the continuing threat of terrorism.
“Nobody has shown why constitutional criminal justice is powerless to investigate and bring to justice people accused of terrorist activities,” writes Kuttner. It may even be true that the criminal justice system is sufficient to bring to justice perpetrators of the occasional, typical terrorist incident–deranged criminals seeking attention and sympathy for an aggrieved cause. However, we should not misinterpret the attacks of September 11 in that way. The cavalier attitude about civilian deaths, the unwillingness to negotiate first with the enemy, the utter indifference to the world’s opinion of their cause, the changing and conflicting goals (cynically calculated for maximum political effect)–all of these bear the marks of an organized and highly motivated foreign power that seeks to destroy our way of life, and thinks it has the means to do the job.
The fecklessness of criminal justice alone in dealing with such a determined and capable foe as al-Qaeda ought to be obvious. Yet it was the very determination of the Clinton administration to view Osama bin Laden through the lens of criminal justice that allowed him to slip away time and again, as Ruth Wedgwood writes in the current issue of the National Interest. In 1996, the Sudanese Defense Minister offered to pressure Saudi Arabia to jail bin Laden, but the Saudis balked at the prospect, and Clinton did not press the issue.
And then, Wedgwood reports, only weeks before the Khobar Towers bombing and well after the government was aware of his connections to terrorism, Clinton declined to intercept his plane as it left Khartoum for Afghanistan, citing the U.S. government’s inability to build a criminal case against bin Laden according to “strict juridical standards.”
The Constitution “is no suicide pact,” Tribe writes. It’s a good thing, too, for the present contest is indeed one of life or death for the democratic nations of the world. The war begun by al-Qaeda with the attacks on New York and Washington reaches much farther than the burning buildings or the lists of the dead. It is a war on our cherished liberties, the very liberties the administration’s detractors believe, strangely enough, that they are defending. The worriers–whose constitutional hand-wringing, though well-meaning, is misplaced–should ponder the prospect of, for example, a successful nuclear attack on U.S. soil by terrorists or a series of conventional attacks on U.S. targets of the magnitude of September 11.
The fear of violent death, Hobbes wrote, is the deepest human passion in politics. And if that passion is not addressed by a political system, then that system is doomed to fail. Further catastrophes such as the ones on September 11, which were allowed by “business as usual,” would surely provoke widespread and implacable calls for an order that would be truly draconian compared to the mild measures already taken by the government. In the aftermath of another September 11, the voice of the civil libertarian would indeed be but a slender reed standing against a gale of public willingness to trade even “essential liberties” for security.