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Bush and the Lesser Evil

The Year of Living Dangerously: A Liberal Supporter of the War Looks Back

an article by Michael Ignatieff
The New York Times Magazine, March 14, 2004

1.

Suppression of civil liberty in the name of national security is an old story in the United States. It has happened repeatedly in times of war or fear since the early days of the republic. In 1798, just seven years after the Bill of Rights was added to the Constitution, the Sedition Act made it a crime to criticize the president; the supposed reason was the danger of French Jacobin terror infiltrating America. The Civil War, World Wars I and II, and assorted episodes of national fear were all made occasions for punishing speech and depriving people of due process of law.

We are in another bad time for civil liberties now. Under the mantle of his War on Terror, President Bush has imprisoned American citizens without trial, detained thousands of aliens in this country, and persuaded Congress to let government intrude more deeply into our private lives. In a significant respect, the danger to liberty is more serious than in past episodes. We regretted previous repressions when the war or stress ended; editors convicted under the Sedition Act were pardoned, for example, and Japanese-Americans confined in desert camps during World War II were given modest compensation years later. But it is hard to envisage an end to the current war. There are terrorist groups around the world, and they are not likely to send a joint delegation to surrender. So repressive measures may go on indefinitely unless they are stopped by the courts or by political second thoughts.

In this situation we need calm, reasoned advice on how to balance the interests of security and liberty. We have it now in a remarkable book. Michael Ignatieff brings history, philosophy, law, and democratic morality to bear on the problem. That may sound daunting, but Ignatieff is such a forceful writer that it is a fascinating book.

Ignatieff has published many books on unusually diverse subjects: history, fiction, a superb biography of Isaiah Berlin. But his main theme nowadays is human rights. He is a professor and director of the Carr Center on Human Rights Policy at Harvard. A Canadian who has lived and taught in Britain as well as the United States, he is able to bring to bear a comparative perspective on how rights are protected elsewhere. Reading him is a bit like having a conversation with an eminently reasonable but convinced and powerfully convincing man. Some of us who opposed the war in Iraq were perplexed when he took a position in favor of it. A year later he had the courage, unlike the policymakers of the Bush administration, to admit to doubts. His thinking about the subject—his open-minded weighing of interests—is something like his approach to terrorism and civil liberties.

The Lesser Evil is not a direct criticism of what the Bush administration has done to civil liberties since September 11, 2001, although it has implications for the current American situation. It is a discussion, rich with examples from past and near present, of how a constitutional democracy should deal with the phenomenon of terrorism. Ignatieff gives a clear assessment of the reality of terrorism’s menace: its immunity to fear of death, its lack of interest in political compromise or, for that matter, negotiable goals. “Evil has escaped the prison house of deterrence,” he says. So rights may sometimes have to yield to necessity—but always with safeguards to minimize the damage.

Rights are not always trumps,” he writes.

But neither is necessity. Even in times of real danger, political authorities have to prove the case that abridgments of rights are justified. Justifying them requires a government to submit them to the test of adversarial review by the legislature, the courts, and a free media.

That guarded balancing process is what he means by the “lesser evil” approach, which he advocates. It “assesses what to do in an emergency,” he says, “with a conservative bias against infringements of established standards of due process, equal protection and basic dignity.” He examines from that perspective, as an example, the internment of Japanese-Americans in World War II. Military authorities said internment would prevent possible sabotage and thus shorten the war. The Supreme Court upheld the order, deferring to the executive branch. Ignatieff concludes:

The loss of freedom that internment will entail is such a serious blow to the individuals involved, and the likelihood that internment will shorten the war is so uncertain, that the rights abridgments cannot be justified.

Ignatieff’s formula requires, crucially, awareness that every concession to claimed necessity is just that: a derogation from established rights. “The best way to minimize harms,” he writes, “is…never to allow the justifications of necessity—risk, threat, imminent danger—to dissolve the morally problematic character of necessary measures.”

It is impossible to read Ignatieff’s calls for sensitivity and awareness in these matters without noting the bleak absence of those qualities in what George W. Bush and his people have done to civil liberties in the name of fighting terror. Their position, legally and politically, is that their measures simply raise no problem of constitutional or other rights. Attorney General John Ashcroft went so far as to say that “those who scare peace-loving people with phantoms of lost liberty…only aid terrorists.” Had the President so much as indicated a concern for civil liberties, it would have made a great difference.

On point after point, Michael Ignatieff’s picture of how a democratic government should react to terrorist threat clashes with the reality of the Bush administration’s practices. A principal concern is access to the courts. Ignatieff repeatedly says that any abridgments of liberty must be subject to judicial review. He criticizes American courts for their historic habit of deferring too readily to executive claims of military necessity, as in the Japanese internment decision in the Supreme Court, Korematsu v. United States, which almost all legal commentators now regard as a tragic mistake. On the specific issue of holding terrorist suspects without trial, he says that “detainees must retain the right to counsel and judicial review of their detention.”

The Bush administration’s position could not be in sharper contrast to that view. It has held two American citizens without trial for more than twenty-two months now as “enemy combatants.” And it is vigorously—I would say obsessively—maintaining that they should have no meaningful chance to contest that designation in court. Indeed, the government argues that they have no right to consult a lawyer.

The lengths to which the administration has gone to try to thwart the legal process in the enemy combatant cases is shown in the brief it filed in the Supreme Court in one of the cases, that of Jose Padilla, an American citizen arrested in the US and accused of connections with al-Qaeda. Government lawyers urged the Court to order the case dismissed because, they argued, Padilla’s lawyer, Donna Newman, had filed her habeas corpus petition against the wrong defendant, Secretary of Defense Donald Rumsfeld, instead of the commander of the Navy brig where he is imprisoned.

The brief said the Supreme Court should not consider the issue of Padilla’s right to counsel because the Defense Department had allowed Donna Newman to visit Padilla once in March—while still maintaining that it had no legal duty to do so. Newman’s visit to Padilla in fact offered no opportunity for what anyone would call consultation with a lawyer. Padilla was kept in another room, behind a glass wall. Two government officials, a lawyer and an intelligence officer, sat in on the meeting; and it was videotaped. Under those circumstances Newman could of course not ask Padilla what he had done, why he thought he was there, or any other substantive question.

The government brief recited as facts a number of damning accusations against Padilla: he

was in Afghanistan and Pakistan after the attacks of September 11, he engaged there in extended discussions with senior al Qaeda operatives about conducting terrorist operations in the United States, he researched explosive devices at an al Qaeda safehouse…, he returned to the United States to advance the conduct of further al Qaeda attacks….

But those are not facts. They are government allegations that Padilla has never had a chance to contest—and never will, if the Bush administration has its way in the Supreme Court.

The Supreme Court argument in the Padilla case, on April 28, gave no clear clues to how the Court will decide it. For the Bush administration, principal deputy solicitor general Paul Clement pressed hard the contention that Padilla’s lawyers had sued the wrong person in Secretary of Defense Rumsfeld. He insisted that the courts had no jurisdiction—so that, if his argument prevails, Padilla’s habeas corpus petition must be dismissed, without any ruling on his rights. The justices seemed closely divided in their reaction to that argument.

On the larger issues, Clement argued that Congress had authorized President Bush to detain citizens as “enemy combatants” when, on September 18, 2001, it authorized the President to use “all necessary and appropriate force” against the authors of September 11 and other terrorists. Justice Stephen Breyer asked why it was “necessary and appropriate” to use the device of indefinite detention without trial or counsel. Clement replied that it was a matter of executive discretion. He thus took the position that Congress gave the President carte blanche to do whatever he wanted to American citizens in the name of fighting terror.

Jennifer Martinez, representing Padilla, said the September 18, 2001, statute was not intended by Congress to overrule an earlier law forbidding detention of Americans without trial—a statute passed in remorse for the detention of Japanese-Americans during World War II. Chief Justice William Rehnquist observed that the grant of authority in the 2001 law was “broad.” But there was no indication, Ms. Martinez replied, that Congress envisaged a power to arrest citizens and hold them indefinitely.

Justice Breyer suggested that the 2001 authorization of the use of force could be read to allow only the ordinary criminal process against Americans in this country unless the government could show an extreme emer-gency. Ms. Martinez endorsed that idea, but Clement said detention was necessary in other cases to interrogate suspects and get intelligence. He said the government had every reason to do so “when somebody goes abroad for training.” That echoed the language in the government brief stating as fact that Padilla had been trained abroad by al-Qaeda, though it is only a government assertion.

There was a striking moment in the argument of the companion case of Yaser Hamdi, the other citizen held as an enemy combatant. Justice John Paul Stevens asked Hamdi’s lawyer, Frank W. Dunham Jr., whether he challenged the government’s assertions about Hamdi’s conduct. Dunham replied that he had a “substantial dispute.” But he added that he could not tell the Court what Hamdi had said about that when he was allowed to visit Hamdi—because what Hamdi said to him was promptly classified.

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