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Terror & the Attack on Civil Liberties

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.


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

  1. 16

    See United States v. Bin Laden, 92 F. Supp. 2d 225, SDNY 2000 (1998 US Embassy Bombings in Nairobi, Kenya and Dar-Es-Salaam, Tanzania) and United States v. Salameh, 261 F.3d 271, 2d 2001 (1993 World Trade Center bombing).

  2. 17

    See Neil Lewis, “Bush Officials Lose Round In Prosecuting Terror Suspect,” The New York Times, June 27, 2003.

  3. 18

    The latter claim was particularly powerful in persuading the nation that war was necessary: CNN reported that in February of 2003, 76 percent of Americans thought that Iraq was involved in the September 11 massacres. See Bruce Morton, “Selling an Iraq– al-Qaeda Connection” (March 11, 2003), available at www.cnn.com/2003/WORLD/meast/03/11/Iraq.Qaeda.link. As of the date of this article, according to preliminary reports of an inspection team, no banned weapons had been found in Iraq in spite of intensive searching. The administration has apparently abandoned its claim of a tie between Iraq and the September 11 massacres. See “Bush Reports No Evidence of Hussein Tie to 9/11,” The New York Times, September 18, 2003.

  4. 19

    See Reuters dispatch, “Wolfowitz Says US Must Act Even on ‘Murky’ Data,” The New York Times, July 27, 2003.

  5. 20

    See “Report on US Antiterrorism Law Alleges Violations of Civil Rights,” The New York Times, July 21, 2003.

  6. 21

    It is a difficulty that the legal systems of many nations, and of the European Union, forbid extradition to countries that impose the death penalty.

  7. 22

    For an argument that it is counterproductive to designate our campaign against terrorism as a war, see Philip B. Heymann, Terrorism, Freedom, and Security: Winning Without War (MIT Press, 2003).

  8. 23

    See Schlesinger v. Councilman, 420 U.S. 738 (1975).

  9. 24

    This new regime of principle may be open to exceptions in truly extraordinary situations: cases, for example, in which the US military has some special and urgent reason for coercive interrogation of a prisoner whom it cannot in good faith accuse of a crime and treat as a criminal. But in such cases the threat that requires that treatment—the proverbial example of the ticking bomb and a prisoner who knows where it is—will be sufficiently grave and imminent so that coercion can be justified without appealing to any principle that would justify imposing serious harm for marginal benefit. In such a case we must accept that we are acting unjustly out of necessity, and try to limit the injustice in any way possible. See Dworkin, “The Threat to Patriotism.”

  10. 25

    My thanks to James Cockayne, Anthony Dworkin, Philip B. Heymann, Gayle M. Horn, and Stephen Schulhofer for written comments on a draft of this article and other help.

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