Two years after the September 11 catastrophe Americans remain in great danger. The danger is of two kinds, of which the first—further terrorist attacks—is obvious. Well-financed terrorists, who live and undergo training in various foreign countries, are determined to kill Americans and are willing to die in order to do so. If they gain access to nuclear weapons, they would be able to inflict even more terrible harm.
The second, less obvious danger is self-inflicted. In its response to this great threat, the Bush administration has ignored or violated many fundamental individual rights and liberties, and we must now worry that the character of our society will change for the worse. The administration has greatly expanded both surveillance of private individuals and the collection of data about them. It has detained many hundreds of prisoners, some of them American citizens, indefinitely, in secret, and without charge or access to a lawyer. It threatens to execute some of these prisoners after trials before a special military tribunal where traditional safeguards to protect the innocent from conviction will not be available.
There has been much powerful criticism of these policies by civil liberties groups, journalists, conservatives who worry about liberty, and others. Many of these critics argue that the administration’s policies are unconstitutional or illegal under international law. I believe they are right. But the administration has been surprisingly successful in persuading federal judges to uphold its policies against legal challenge,1 and international lawyers are divided over whether our practices violate any of our treaty obligations.2 In any case, many of those who defend the government’s policies argue that questions of legality are close to irrelevant in times of national emergency: they say that, as Chief Justice Rehnquist has put it, in war the laws “speak with a muted voice.”3 We must therefore take up a different and more basic issue: whether the administration’s polices are in-defensible even if they are legal because they violate people’s fundamental human rights—rights at the foundation of the international moral order that nations must respect even when under threat. If so, then these policies are not only wrong but shameful.
The administration’s USA Patriot Act, hurried through Congress almost immediately after September 11, enacted a breathtakingly broad definition of terrorism including, for example, violent acts “intended to influence the policy of a government by intimidation or coercion,” so that someone is guilty of aiding terrorism if he contributes money to any group with those aims. The act greatly expanded the power of government to conduct secret searches of private homes, permitted the attorney general to detain aliens as security threats whenever he wanted, stipulated new rules enabling government to demand records of any person’s book purchases or borrowings from bookstores and libraries, and increased the government’s surveillance authority in many other ways. A recent report by an internal Justice Department inspector alleged “dozens” of violations of civil rights in the enforcement of the act.4
More than 650 prisoners are now held…
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