Rights in an Insecure World: Why National Security and Civil Liberty Are Complements
Pearlstein, Deborah, The American Prospect
ALMOST AS SOON AS THE PLANES CRASHED INTO THE TWIN TOWERS, SCHOLARS, pundits, and politicians began asserting that our most important challenge as a democracy now is to reassess the balance between liberty and security. As Harvard human-rights scholar Michael Ignatieff wrote in The Financial Times on September 12, "As America awakens to the reality of being at war--and permanently so with an enemy that has as yet no face and no name, it must ask itself what balance it should keep between liberty and security in the battle with terrorism."
Long before anyone had a clear idea of what went wrong--much less how to make sure it never happened again--public debate began with the assumption that something about the current "balance" was partially to blame for the attacks' success. As the attorney general testified in December 2001, "al-Qaeda terrorists are told how to use America's freedom as a weapon against us." In embracing the USA PATRIOT Act just weeks after the attacks, congressional member after congressional member stood to explain, as then-Senate Majority Leader Trent Lott put it, "When you're at war, civil liberties are treated differently." Minority Leader Dick Gephardt embraced the assumption as well, saying, "[W]e're not going to have all the openness and freedom we have had."
Our open society had made us less secure. The converse was as clear: A less free society would be safer. We had posited a solution before we had identified the problem. And we had based the solution on the premise that liberty and security are a zero-sum game.
WHILE THE DRIVE TO THINK ABOUT SEPTEMBER 11 in terms of its implications for personal liberties was understandable, the balance metaphor is badly flawed. As the commission report itself demonstrates, the fundamental freedoms of our open society were not the primary (or even secondary) reason the terrorists succeeded on September 11. FBI agents in Minneapolis failed to search terrorist suspect Zacarias Moussaoui's computer before the attacks, not because constitutional restrictions against unreasonable searches and seizures prevented them from doing so but because they misunderstood the tools the law provided. The vast majority of the September 11 hijackers were able to enter the United States not because equal protection provisions prevented border officials from targeting Arab and Muslim men for special scrutiny but because, according to the commission, "[b]efore 9/11, no agency of the U.S. government systematically analyzed terrorists' travel strategies" to reveal how terrorists had "detectably exploit[ed] weaknesses in our border security."
It is also not the case that a society less concerned with human rights is per se better protected from terrorism. On the contrary, some of our most rights-damaging measures since September 11 have had a neutral or even negative effect on counterterrorism. Most important, it is not the case that enhanced security invariably requires a compromise of human rights.
The balance metaphor has made crafting a security policy response to September 11 easy--and often misguided. It has also made policy unduly prone to undermine human rights. Three years after the fact, both rights and security are the worse for wear.
CAUGHT IN THE BALANCE
The PATRIOT Act became an important first example: It allows the FBI to secretly access Americans' personal information (library, medical, telephone, and financial records, among other things) without needing to show to an independent authority (like a judge) that the target is particularly suspected of terrorist activity. Yet the September 11 commission's report and other studies done since the attacks suggest that our primary intelligence failure on September 10 was not having too little information; our problem was failing to understand, analyze, and disseminate the significant quantity of information we had. For example, Minneapolis FBI agents did not understand what "probable cause" meant (the level of evidence required to obtain a regular criminal search warrant)--so they did not understand that they could have secured a run of the-mill search warrant on Moussaoui. This failure is a problem not remedied by the PATRIOT provision that gives the FBI power to trawl secretly through Americans' records. That power is all about gathering more data; it does nothing to address the problem of analysis that we still have. Still, changing the law was fast and easy--far easier than changing culture, competence, or overarching foreign policy. Imposing upon rights could become a policy substitute for enhancing security.
A similar approach was evident in the FBI's "voluntary" interview programs in certain immigrant and minority communities--a process that expended enormous resources and deeply alienated the communities whose cooperation in intelligence gathering may be needed most. After September 11, hundreds of foreign nationals in the United States were wrongly detained, unfair[y deported, and subject to mistreatment and abuse under government programs, from special registration requirements to voluntary interviews to the detention of those seeking political asylum from a list of predominantly Arab and Muslim countries. Yet an April 2003 Government Accounting Office report on the effects of these interviews revealed that none of the information gathered from the interviews had yet been analyzed for intelligence, and there were "no specific plans" to do so. Indeed, from a security point of view, information overload can make matters worse. Instead of looking for a needle in a haystack, we must now find a needle in a field full of hay.
And just as out security needs for more careful intelligence assessments, thorough analysis, and greater information sharing are at their height, the executive-branch impulse has been to crack down on information shared not only with the public but with Congress itself. In 2003, the executive branch classified 25 percent more information (based on the number of executive-agency determinations that certain information should be classified) than the year before, which itself had seen a large rise. The CIA's numbers went up 41 percent, the Justice Department's 89 percent. At the same time, the amount of information being declassified fell to half what it had been in 2000, and one-fifth of 1997 levels. And this is not just about traditionally classified information. Last December, for example, the Defense Department announced a new policy preventing its own inspector general from posting unclassified information that was, in the Pentagon's estimation, "of questionable value to the general public." At the same time, despite repeated congressional requests over a period of years for complete statistics on how the PATRIOT Act has been used by the Justice Department, information available to Congress remains incomplete.
Aggressive or humiliating interrogation is the most pointed example of counterproductive policy. If the most important issue we face in the treatment of a suspect who knows the location of a ticking bomb is "what balance" to keep between security and liberty, of course liberty will lose. Saving the lives of 3,000 innocents weighs far heavier in the balance than the rights of any one individual.
But how does aggressive interrogation improve security? Set aside the fact that the certainty of the ticking-bomb scenario never exists in the real world. When John Ashcroft argued that terrorists were trained to"use our freedoms against us," he pointed to an al-Qaeda training-manual instruction that terrorists, if captured, should lie in response to questions from authorities. However, neither the manual nor the attorney general explained how a denial of human rights can overcome the instruction to lie. Are terrorists less likely to lie if we humiliate them in violation of Geneva Convention protections--which we are, after all, bound to obey by law?
To the extent that the United States is able to answer this question and compared with the counterterrorism expertise in Israel and the United Kingdom, our knowledge is limited at best--published accounts point to the opposite conclusion. As one Army interrogator put it in testimony related to the investigation of Abu Ghraib, "Embarrassment as a technique would be contradictory to achieving results." That is an important reason why the Army field manual has for decades instructed soldiers to avoid such tactics. They of course violate rights. They also de net reliably work. On the other hand, the widespread use and public revelation of such tactics has been powerfully effective in fueling anger and resentment that may feed anti-American terrorism for some time.
NOW COMPARE THESE TACTICS WITH SECURITY enhancing measures that require essentially no balancing of security with human rights. For example, a bipartisan array of counterterrorism experts continues to criticize as inadequate inspection regimes for the 7 million cargo containers that arrive in U.S. ports each year--yet all acknowledge the danger of attack through such containers as a significant ongoing threat. The same may be said for the threat of bioterrorist attack, but the largely rights-neutral improvement of international public-health surveillance (which could help identify infectious disease agents before they enter the United States) has also taken a backseat. And many in Congress have resisted entirely rights-neutral programs that would help the former Soviet Union secure stockpiles of fissile material to prevent it from becoming available on the global black market. And on and on.
This is not to suggest that balancing security interests against liberty interests is never required. It is to emphasize that taking a stone away from the rights side of the scale does hOt necessarily give the security side an advantage any more than taking a stone away from the security side strengthens rights. It is to underscore that viewing the issue of security post-September 11 as an exercise where rights and security are opposed is likely to produce both poor security policy and rights-damaging results.
THE MORAL EQUIVALENT OF LAW
If escaping the balancing framework is important to making good judgments about security policy, it is essential to preserving a regime of human rights under law. The dangers of this have been acutely evident in the new U.S. approach to detention and interrogation. Since early 2002, the White House has insisted that the president has the power to designate American citizens "enemy combatants," and thereby deprive them of the constitutional protections of the U.S. criminal-justice system, or, indeed, any legal rights at all. More or less the same position has applied to the U.S. detention of thousands of foreign nationals held indefinitely in a global system from Iraq to Afghanistan to Guantanamo Bay.
As White House Counsel Alberto Gonzales put it in a speech defending the combatant-detention policy to the American Bar Association's Standing Committee on Law and National Security, at issue in these cases was "the balance struck by this administration between protecting out country and preserving our freedoms." This balance had to be struck by the chief executive as"a matter of prudence and policy"--not one fixed in some more permanent domestic or international framework of rights, or one unduly constrained by law. "You have to realize," the president's lawyer told the Supreme Court, "that in situations where there is a war ... you have to trust the executive to make the kind of quintessential military judgments that are involved" in interrogating detainees under U.S. control. This was not just about a particular entitlement--to a lawyer, to confidentiality, or to due process. This was about the idea of rights itself.
This argument took tenter stage this past spring when the Supreme Court heard its first three cases arising in the war on terrorism. In each of these cases--two involving the detention of U.S. citizens as "enemy combatants," one involving the detention of hundreds of foreign nationals beyond U.S. borders--the president argued that we should abandon reliance on law according to standards known to all and fixed in advance (the very definition of the rule of law) and move toward a more "flexible" anti-terrorism system where the rule of the road is not law but (in every case, at any moment) balance. Would an enemy-combatant detainee ever be able to assert his innocence to someone other than his interrogator? one justice asked during oral arguments. "As I understand it," the president's lawyer answered, "the plan on a going-forward basis, reflecting the unique situation of this battle, is to provide individuals like [Yaser Esam] Hamdi, like [Jose] Padilla, with the equivalent" of some review."We don't know for sure."
By most accounts, the Court's decisions in these cases were a victory for human rights. In the case of U.S. citizen Hamdi, eight of the nine justices rejected the White House assertion that the president alone determined what rights Hamdi was entitled to receive. The federal courts will also have a role now in checking presidential power to detain foreign nationals at Guantanamo Bay. And while U.S. citizen Padilla may have to jump through additional procedural hoops, Hamdi's case put the handwriting for him on the wall: There would be no such thing as a rights-less citizen of the United States.
Nonetheless, these cases presented questions about government power and law that were staggeringly fundamental. And judging by the United States' ongoing detention of individuals in uncertain status around the world, and its on going resistance to allowing Guantanamo Bay detainees to challenge their detention in federal courts, the administration's basic position remains: Rules can be made "going forward"; on any given day, those rules may not be available for consideration by a court; and the rights available in each situation are "unique." In the rush to adjust the balance, we are abandoning the idea at the cote of international human-rights law that some measures are fixed.
Conceiving our primary post-September 11 challenge as what balance to keep between liberty and security leaves us prone to see links between liberty and security where they need not exist, and prone to see rights under law as just another weight that can be readily removed from the scale. In fact, the basic balance between liberty and security in U.S. law was established in some detail centuries ago, at a time when the United States as an enterprise had never been more vulnerable or less secure. It included a commitment to the idea that people should be able to know in advance what the law is, and that if circumstances--like pressing new challenges to national security--required the laws to be changed, the people would have a say in how to change them. We have called that commitment the rule of law. And human rights are meaningless without it.
RELATED ARTICLE: Criminal justice and the erosion of rights.
While human-rights observers have rightly focused on terrorism-related developments in the U.S. criminal-justice system, the trend toward limited procedural protections for defendants and a shrinking judicial role well predates the September 11 attacks. Indeed, security has been a central justification for rights-limiting changes in the criminal-justice system for decades.
Much like the war on terrorism today, the dominant feature of criminal-justice policy in the 1980s was the vigorously marketed war on drugs. Once declared in 1982, that war quickly became the federal government's primary domestic-security focus. The Justice Department shifted huge numbers of personnel previously occupied with white-collar criminals to anti-drug enforcement in the inner cities. As the Drug Enforcement Administration's New York City office chief later wrote of the mid-'80s, it "was the hottest combat reporting story to come along since the end of the Vietnam war."
Out of the drug war grew a series of rights-limiting legislative proposals and laws, including measures that would involve the military in drug-control efforts, expand the death penalty to certain drug-related crimes, and ease restrictions on allowing illegally obtained evidence to be introduced in drug prosecutions. Notable among these was the advent of mandatory minimum sentencing. With congressionally set sentences, judges Iost much of their ability to tailor punishment to particular offense and offender--a development that both limited the independent discretion judges had long enjoyed and sometimes produced grossly disproportionate results. By the 1990s, keen to diffuse the stereotype that Democrats were "soft on crime," President Clinton asked Congress to endorse three-strikes laws then growing in popularity in the states. Under these laws, after three felony convictions--in some states, no matter how trivial the underlying offenses--an offender could be sentenced to a lifetime in prison.
Just about the time that Republican efforts had failed to enact sweeping habeas corpus reform legislation--designed to limit defendants' appeals in federal court and speed the imposition of the death penalty--Americans witnessed the 1995 bombing of the Murrah Federal Building in Oklahoma City. The resulting legislation, the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), included a number of sensible counterterrorism measures designed to make it easier, for example, to track the origin of chemical explosives and restrict the sale of potentially deadly biological agents. But AEDPA also sharply curtailed defendants' ability to have unconstitutional state-law criminal convictions overturned in federal court.
The AEDPA restrictions picked up on a series of Supreme Court decisions from the 1970s through the 1990s already limiting the types of constitutional claims federal habeas courts could consider. For example, based on a Supreme Court decision, such courts had not been able to consider defendants' claims that law-enforcement officers had illegally searched or seized evidence used to secure convictions. After AEDPA, no matter what the underlying constitutional right, a federal court could only overturn a state conviction if it was clearly "contrary to" or "an unreasonable interpretation of" federal law. A state court that simply issued a wrong decision on federal law--so long as it was not unreasonable--could not be over turned on habeas review. In the first years after its passage, AEDPA had a dramatic effect in accelerating the number of executions in the United States: Between 1996 and 1999, the number of prisoners executed annually in the United States more than doubled.
While obtaining relief from an unlawful conviction was becoming harder, it was becoming nearly impossible for prisoners to challenge unconstitutional conditions of detention. The Prison Litigation Reform Act of 1996 included a provision authorizing any prison official (or other party) to file a motion in court asking to end any existing court mandate that had required state officials to remedy unconstitutional prison conditions. If the federal court failed to respond to the motion within 90 days, the court's previous order (requiring, for example, measures to ensure adequate health conditions in prisons) would cease to have effect until the case was resolved. The Supreme Court narrowly upheld the legislation in 200o.
Post-September 11 legislative reforms have, of course, taken their own toll on the rights available to those caught up in the criminal-justice system. The PATRIOT Act has made it easier for law-enforcement officers to avoid Fourth Amendment warrant requirements in conducting physical and electronic searches. Material-witnesses statutes--long used to detain key witnesses to make sure that they did not disappear before testifying in a pending trial--are now used to hold individuals for lengthy periods, but without any of the constitutional protections afforded to criminal suspects. And prosecutions for the broad crime of providing "material support" to a terrorist organization have increased, risking incursions into legitimate rights of free association and speech.
After September 11 as before, the criminal-justice system remains among legislators' preferred vehicles for addressing social ills of all kinds.
DEBORAH PEARLSTEIN is director of the U.S. Law and Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting lecturer on human rights and national security at Stanford Law School.…
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Publication information: Article title: Rights in an Insecure World: Why National Security and Civil Liberty Are Complements. Contributors: Pearlstein, Deborah - Author. Magazine title: The American Prospect. Volume: 15. Issue: 10 Publication date: October 2004. Page number: A7+. © 1999 The American Prospect, Inc. COPYRIGHT 2004 Gale Group.