Introduction Everything Changed The terrorist attacks of September 11, 2001, altered the American landscape in many ways. Approximately three thousand lives were lost. New York City’s two tallest buildings fell. Within a month, the United States was bombing Afghanistan, beginning a war that continues a decade later. At home, Congress enacted the USA PATRIOT Act within weeks of the attack, granting the executive broad new surveillance powers while eliminating judicial review and other safeguards. In an effort to coordinate domestic security operations, the Department of Homeland Security was formed, absorbing part or all of 22 different gov- ernment agencies; it is now the third-largest federal bureaucracy in the United States, after the departments of Defense and Vet- erans Affairs. In short, the “national security state” was born, as untold resources were redirected to the task of making the nation safe from future attacks. On May 1, 2011, U.S. forces located and killed Osama bin Laden, but the transformations he triggered will long outlive him — as will, apparently, the war in Afghanistan. The world changed as well. The United Nations Security Council approved resolutions requiring nations around the world to adopt and implement counterterrorism measures, including systems to track and stem the flow of funds to organizations and individuals that the Security Council declared to be “ter- rorist” — without affording those designated any opportunity to challenge the label. The United States was targeted on Sep- tember 11, but other mass attacks followed — in Indonesia, the
Transcript
1. IntroductionEverything ChangedThe terrorist attacks of
September 11, 2001, altered the Americanlandscape in many ways.
Approximately three thousand liveswere lost. New York Citys two
tallest buildings fell. Within amonth, the United States was
bombing Afghanistan, beginninga war that continues a decade later.
At home, Congress enactedthe USA PATRIOT Act within weeks of the
attack, granting theexecutive broad new surveillance powers while
eliminatingjudicial review and other safeguards. In an effort to
coordinatedomestic security operations, the Department of
HomelandSecurity was formed, absorbing part or all of 22 different
gov-ernment agencies; it is now the third-largest federal
bureaucracyin the United States, after the departments of Defense
and Vet-erans Affairs. In short, the national security state was
born,as untold resources were redirected to the task of making
thenation safe from future attacks. On May 1, 2011, U.S.
forceslocated and killed Osama bin Laden, but the transformationshe
triggered will long outlive him as will, apparently, the warin
Afghanistan. The world changed as well. The United Nations
SecurityCouncil approved resolutions requiring nations around the
worldto adopt and implement counterterrorism measures,
includingsystems to track and stem the flow of funds to
organizationsand individuals that the Security Council declared to
be ter-rorist without affording those designated any opportunityto
challenge the label. The United States was targeted on Sep-tember
11, but other mass attacks followed in Indonesia, the
2. United Kingdom, Spain, Jordan, and India, to name only a
few. Many nations were prompted to strengthen their own counter-
terrorism laws. The United Kingdom, for example, authorized
indefinite detention without charge of foreign citizens suspected
of terrorist involvement a measure its own highest court sub-
sequently declared incompatible with the European Convention on
Human Rights. In the wake of the attacks, defenders of expanded
govern- ment power to fight terrorism argued that the attacks were
a wake-up call, demonstrating to the United States and the world
the increased vulnerability of citizens to deadly attacks on a
large scale carried out by small groups of committed individu- als.
Commentators and government officials raised the specter of
terrorists employing chemical, biological, or nuclear weap- ons.
Defending against such catastrophic threats posed new challenges.
Many nations have long had access to weapons of mass destruction,
but, as they are also responsible for protect- ing civilian
populations, they can presumably be deterred from using such
weapons by threats of retaliation; non-state terror- ist groups
have no such constraints. And suicide bombers have shown that
desperate individuals will sacrifice even their own lives to strike
a blow for their cause. The potential threats seem limitless, and
the vivid and horrifying images of September 11 made what had been
previously unthinkable all too imaginable. The United States
Response The United States responded to the attacks by adopting
what then-attorney general John Ashcroft called a paradigm of pre-
vention. He argued that it was not enough to capture terrorists
after the fact, we must seek to prevent the next attack. To do
securing l i b e rt y
3. so, Ashcroft argued, the government had to act
aggressivelyagainst all who might pose a threat, in order to
incapacitatethem before they are able to act against us. Many were
per-suaded by this view, and it soon became conventional wisdomthat
the FBI and other law enforcement agencies had spent toomuch time
investigating completed crimes and not enough timegathering
intelligence to forestall future crimes. The charge isoverstated
law enforcement has always been as interested inpreventing and
deterring crime before it happens as in catch-ing criminals after
the fact. And state and federal laws have longmade it a crime to
plan for or prepare to commit crimes, so therewas never a need to
wait until a bomb exploded to bring criminalcharges. After the
attacks of September 11, however, the notionthat those bound to
protect the nation had failed to connect thedots in advance led
inexorably to the idea that the governmentmust become
forward-leaning in its approach to terrorism. The impetus toward
prevention is understandable. All otherthings being equal,
preventing a terrorist act is preferable toresponding after the
fact all the more so when the threatsinclude weapons of mass
destruction and the attackers aredifficult to detect, willing to
kill themselves, and seeminglyunconstrained by any considerations
of law, morality, or humandignity that we can recognize. There is
nothing wrong withprevention itself as a motive or a strategy
think, for exam-ple, of preventive medicine. In the realm of
ordinary criminallaw enforcement, preventive policing, which
emphasizes directpolice involvement with communities to identify
and solvepotential problems before they lead to criminal conduct,
is sen-sible, effective, and often more humane than imposing
lengthyprison sentences. Thus, prevention is a perfectly acceptable
goalin many contexts, and is surely permissible in
counterterrorism. in t r u c t i n
4. Moreover, there are many ways to deter or prevent ter-
rorism that pose little or no concerns from the standpoint of civil
liberties. Airport metal detectors and X-ray machines are
preventive measures, as are concrete barriers and increased
security around government buildings and other vulnerable targets.
More careful screening of individuals and cargo enter- ing the
country is also a preventive measure. Expanding and improving our
ability to analyze and understand intelligence data may help
identify and interdict threats before they can be carried out.
Developing positive ties to communities and nations that might have
individuals sympathetic to terrorist causes may simultaneously
reduce the likelihood that such individuals will act on their
sympathies and help to identify potential bad actors so that they
can be monitored. Providing foreign aid to countries with dire
economic and humanitarian needs may reduce the likelihood that
extremists and terrorists will find fertile recruit- ing ground
among desperate people. Many of these preventive measures are
relatively uncontroversial, in large part because they do not
necessitate substantial sacrifices with respect to lib- erty,
privacy, or equality. The Perils of Prevention In the wake of 9/11,
however, the United States did not limit itself to such responses.
It also sought to employ the governments most coercive powers the
power to monitor, abduct, detain, interrogate, and even kill in
preventive fashion, using these tactics against individuals and
groups based on speculation about what they might do rather than
evidence about what they had done. When a democratic state deploys
its harshest coer- cive measures based on speculative predictions
about future securing l i b e rt y
5. behavior, it all too often sacrifices some of its most
fundamen-tal commitments to the rule of law. In the absence of a
focus onobjective conduct, for example, suspicion may be predicated
onrace, ethnicity, or religious affiliation, leading to
discriminatoryprofiling. Because accurate predictions are so
difficult, mistakeswill be made, subjecting innocents to wrongful
surveillance,detention, or worse. Fair process will be
short-circuited, as it isdifficult to square with predictive
guesswork rather than objec-tive assessments of fact. Much of the
Bush administrations war on terror was explic-itly justified in
preventive terms. He launched a war, the mostextreme deployment of
coercive force, against Iraq on preven-tive grounds. Iraq had
neither attacked us nor threatened toattack us, but President Bush
argued that Saddam Hussein mighthave weapons of mass destruction
that he might at some pointgive to terrorists who might use them
against us. It turned outthat Saddam Hussein didnt have such
weapons, and there wasno evidence that he would have turned the
weapons over to ter-rorists even if he had them but using the
preventive rationale,we declared war on pure (and baseless)
speculation. On similar preventive grounds, President Bush
authorized theNational Security Agency (NSA) to intercept millions
of phonecalls between persons suspected of being associated with
alQaeda abroad and individuals here at home, without
judicialapproval and in apparent contravention of a federal
criminallaw. He created secret prisons run by the CIA into which
theUnited States disappeared suspected terrorists abductingthem,
detaining them, and denying to the world that they werein U.S.
custody. To get high-value suspects to talk, President
Bushauthorized the CIA to use cruel, inhuman, and degrading
meth-ods, and torture itself including extended sleep deprivation,
in t r u c t i n
6. stress positions, slamming suspects into walls, and
waterboard- ing (temporarily asphyxiating an individual by pouring
water over a towel wrapped around his mouth and nose, creating the
sensation of drowning). He authorized the CIA to kidnap other
suspects and render them to security services in countries, Egypt
and Syria among them, known for routinely using torture during
interrogations. He opened a prison camp at Guant- namo Bay, where
the military held more than 775 men, many without objective
evidence that they were fighting against us. The president
initially refused to acknowledge that they had any legal rights,
much less access to a U.S. court to challenge the legality of their
detention. He established military commis- sions in which military
officers could try and execute terrorists for war crimes based on
secret evidence that the defendant had no opportunity to see or
rebut and even on the basis of evidence obtained through torture.
President Bush contended that he could authorize these and other
actions as commander in chief even where Congress had made them
illegal. And he insisted that the Geneva Conventions international
treaties governing the treatment of civilians and combatants in
armed conflict did not protect fighters for al Qaeda or the Taliban
at all. All these measures were undertaken in the name of pre-
venting another terrorist attack and, indeed, by the end of
President Bushs second term, no more terrorist attacks had been
perpetrated on U.S. soil. The President Retreats Many of these
measures proved highly controversial and the president was never
able to prove that they were, in fact, nec- essary to foil a
follow-up terrorist attack. Indeed, by the time securing l i b e rt
y
7. President Barack Obama succeeded him, President Bush hadbeen
forced to retreat on many of these policies, without anyapparent
increase in terrorist attacks. In Rasul v. Bush (2004)and
Boumediene v. Bush (2008), the Supreme Court rejected hiscontention
that he could detain suspected terrorists at Guant-namo Bay
indefinitely without any access to court to challengetheir
detentions, and ultimately ruled that not even the presi-dent and
Congress acting together could deny court review tothe detainees.
In Hamdan v. Rumsfeld (2006), the Court declaredthat President
Bushs military commissions were illegal underdomestic law and the
Geneva Conventions, dismissing thepresidents contention that the
Conventions do not apply to theconflict with al Qaeda. When a
secret Justice Department memo authorizing water-boarding and other
illegal interrogation tactics was leaked to theWashington Post in
2004, the administration quickly rescinded thememo as it apparently
could not defend in public what it haddone in secret. (As detailed
in Chapter 4, however, the JusticeDepartment continued to authorize
illegal interrogation tacticsin secret even after appearing to
abandon them in public.) Con-gress, under the leadership of Senator
John McCain, forbadethe use of cruel, inhuman, and degrading
treatment against alldetainees. International condemnation of
rendition to tortureseems to have led the Bush administration to
halt that practice,although the secrecy surrounding the program
makes certaintydifficult. After the NSA spying programs existence
was dis-closed, the president halted it until Congress amended the
lawto authorize electronic surveillance with greater oversight.
AndCongress added checks and balances to some of the most
con-troversial PATRIOT Act provisions. Even after all these
reformswere adopted, there were no further terrorist attacks on
theUnited States, calling into question the administrations claims
in t r u c t i n
8. that the extreme measures it initially adopted were actually
nec- essary for U.S. security. President ObamaContinuity or Change
? When President Obama took office in 2009, he introduced further
reforms to bring our security policy in line with our com- mitments
to liberty, equality, human dignity, and the rule of law. On his
second day in office, he issued executive orders prohib- iting the
use of enhanced interrogation techniques, the Bush administrations
euphemism for the torture and cruel treatment that it had
authorized. He ordered the closure of the CIAs secret prisons, and
promised to close the prison camp at Guantnamo Bay within a year.
Shortly thereafter, he ordered a temporary halt to military
commissions at Guantnamo, appointed an interagency task force to
review all Guantnamo cases, and released several previously secret
Justice Department memos that had continued to authorize coercive
interrogation tactics. Most important, President Obama sounded a
very different over- all theme on national security, arguing in a
speech at the National Archives in May 2009 that the United States
can and must defend itself within the confines of the rule of law
and that our country will be stronger, not weaker, for doing so.
Whereas President Bush had dismissed legal restrictions as an
obstacle to be dis- regarded in the name of security, President
Obama insisted that we must pursue security in ways that also
preserve our liberty. As is often the case, however, that goal
proved easier to proclaim than to accomplish. Even when Obamas own
party controlled both houses of Congress, legislators objected to
moving any Guantnamo detainees inside U.S. borders, even if the
detainees would be housed in the most secure facilities. securing l
i b e rt y
9. Congress repeatedly barred the president from spending
anymoney to relocate Guantnamo detainees to the United
States,effectively blocking his effort to close the camp a goal
every-one from former President Bush to Defense Secretary
RobertGates and former Defense Secretary Colin Powell agreed
wasdesirable from a foreign policy standpoint. When AttorneyGeneral
Eric Holder announced plans to try men accused ofplanning and
facilitating the 9/11 attacks, including the allegedprincipal
architect of the attack, Khalid Sheikh Mohammed, ina New York
civilian courtroom, the plan was roundly criticized.Congress
ultimately barred a civilian criminal trial, and Holderwas forced
to charge Khalid Sheikh Mohammed before a militarycommission in
Guantnamo an untested forum that may wellcause many more
complications than a civilian trial would have. Meanwhile,
President Obama continued some of his prede-cessors controversial
policies. He asserted the right to detainsuspected al Qaeda and
Taliban members without criminal trial.He invoked the state secrets
privilege in several lawsuits seek-ing to hold U.S. officials
accountable for unconstitutional andcriminal conduct, including
rendition to torture. He opposedcourt review of those detained at
Bagram Air Force Base inAfghanistan, even though some of the
detainees there, like manyat Guantnamo, were captured in foreign
lands far from any bat-tlefield. He defended as constitutional a
federal law that makesit a crime to advocate for human rights and
peace if one doesso in conjunction with a group designated as
terrorist evenif the individuals purpose in doing so is to
encourage the groupto forgo violence and to pursue peaceful avenues
for politicalchange. His administration also opposed efforts to
reform theUSA PATRIOT Act to implement greater safeguards for
Ameri-cans privacy, and authorized the targeted killing of
radicalcleric Anwar al-Awlaki, a U.S. citizen far from any
battlefield, in t r u c t i n
10. on grounds that he was associated with al Qaeda and
planning future attacks. History confirms that sacrificing
liberties in times of crisis is not a partisan issue. Republican
president Abraham Lincoln, one of the most revered champions of
equality and liberty in all of U.S. history, unilaterally suspended
the writ of habeas corpus during the Civil War, thereby denying
those detained by Union forces any access to court to challenge
their detention. The Constitution grants the power to suspend
habeas corpus to Con- gress, not the president, but Lincoln argued
that the emergency justified his otherwise illegal action.
President Franklin Delano Roosevelt, a progressive Democrat, was
responsible for intern- ing in camps some 120,000 people of
Japanese descent during World War II, solely because of their
Japanese ancestry. Some 70,000 of them were American citizens. None
were individually found to pose a risk of espionage or treason.
President Bill Clin- ton, a Democrat, supported and signed the
Anti-Terrorism and Effective Death Penalty Act of 1996, a law that
radically restricted habeas corpus review for all prisoners,
criminalized speech as a form of material support to terrorism, and
established depor- tation for foreign nationals based on secret
evidence that they had no opportunity to confront or rebut. Does
Sacrificing Liberty Increase Security? Thus, history suggests that
balancing liberty and security is no simple matter. Reasonable
people will value liberty and secu- rity differently and therefore
will be inclined to adopt different trade-offs between the two.
Moreover, the very idea of bal- ance is misleading; the values
sought to be weighed against one another are incommensurable. How
does one quantify the securing l i b e rt y
11. value of liberty, of privacy, or of equal treatment as
measuredagainst the costs of a terrorist attack? More to the point,
sacrificing rights often does not in factincrease security, and may
make us less safe. When PresidentBush authorized torture, for
example, he argued that his inter-rogators obtained information
that they could not have learnedusing lawful, noncoercive
interrogation tactics. But the CIAs owninspector general, reviewing
the program, found no evidencethat the tactics had resulted in
information that could not havebeen gleaned through legal means. As
Ali Soufan, a seasoned U.S.interrogator, argues in Part 2,
developing rapport is a much moreeffective technique for obtaining
reliable information. Thereis no conclusive evidence that coercive
interrogation worked. What we can and do know is that the strategy
of coerciveinterrogation has entailed tremendous costs. The
interrogationpolicy eventually led to the Abu Ghraib torture
scandal, in whichall the world saw graphic photographic evidence of
the demean-ing ways that U.S. soldiers treated Arab and Muslim
detainees.Those revelations, in turn, provided a powerful
recruiting toolfor al Qaeda, as extremist websites prominently
featured theimages to stoke anti-American sentiment around the
world.Polls suggested that, in short order, the United States went
frombeing the object of the worlds sympathy on the day after 9/11to
a country more widely resented than ever. In addition, the desire
to use evidence obtained by tortureto hold terrorists accountable
led the Bush administration toestablish military commissions that
fell drastically short of fun-damental fairness guarantees. A fair
trial cannot be based onevidence obtained through torture, period.
Eventually, Con-gress reformed the commission rules to make clear
that coercedconfessions could not be used. But that, in turn,
creates major in t r u c t i n
12. obstacles to holding Guantnamo detainees accountable for
their alleged wrongs. Once a defendant has been tortured, try- ing
him becomes extremely difficult because fundamental rules of due
process and fair play demand that the government not benefit in any
way from information it learned through its tor- ture, and it is
often difficult or impossible to establish that none of the
governments evidence is tainted. Are We Safer? Has the war on
terror in general made us safer or more vul- nerable? It is
difficult to say. But there are reasons to doubt that many of the
measures have been effective. According to the July 2007 National
Intelligence Estimate, al Qaeda by that time had fully
reconstituted itself in Pakistans border regions. Terrorist attacks
worldwide grew dramatically in frequency and lethality after 2001,
with suicide bombings particularly on the rise. New terrorist
groups, from al Qaeda in Iraq to the small groups of young men who
bombed subways, buses, and commuter trains in London and Madrid,
have multiplied. And only a small number of individuals have been
convicted of engaging in or conspiring to engage in a terrorist act
since 9/11. Consider the measurable results from one of the most
exten- sive domestic preventive campaigns conducted by the United
States in the wake of 9/11. Using immigration law, the Bush
administration after 9/11 called in 82,000 foreign nationals for
fingerprinting, photographing, and special registration simply
because they came from predominantly Arab or Muslim coun- tries on
the theory that it might find a terrorist. It sought out another
8,000 young men from the same countries for more extensive FBI
interviews, again based solely on the fact that they securing l i b
e rt y
13. were young men who had come from predominantly Arab
andMuslim countries. And immigration officials placed more
than5,000 foreign nationals, virtually all Arab or Muslim, in
preven-tive detention in the first two years after 9/11, again in
hopesthat they would identify a terrorist. Yet not one of these
individu-als stands convicted of a terrorist crime. The governments
record,in what is surely the largest campaign of ethnic profiling
sincethe Japanese internment during World War II, is 0 for 95,000.
But how can we account for the fact that the United Stateshas been
free of a terrorist attack since 9/11? One cannot ulti-mately prove
what combination of factors contributed to thisfortunate result.
Could it have been the military response inAfghanistan (notably not
a preventive war, but an act of self-defense)? Information obtained
from lawful surveillance andinterrogation? Information obtained
from illegal surveillance andinterrogation? Increased airport
security measures? Increasedspending on intelligence analysts, and
increased coordination ofintelligence agencies? The detention of
suspected al Qaeda andTaliban fighters at Guantnamo and Bagram? All
of the above?Some of the controversial preventive measures
undertaken mayhave helped disrupt a terrorist attack, identify a
potential ter-rorist, or deter someone from committing a terrorist
act in thefirst place. We can never know for sure.Debating Our
FutureThis is what makes the debates that this book seeks to
fosterso challenging. The competing values at stake are vital,
butimpossible to quantify. So much that we might want to knowis
unknowable. Yet we must nonetheless act and judge ouractions in the
face of this uncertainty. At the end of the day, the in t r u c t i
n
14. debates must be guided by an exploration of our fundamental
values. As Senator McCain said in opposing the use of any cruel,
inhuman, or degrading interrogation tactics against suspected
terrorists, its not about who they are; its about who we are. This
volume highlights six issues for debate and presents competing
views on each issue. It asks whether ethnic or reli- gious
profiling of Arabs and Muslims is constitutional or effective. It
explores the question of when, if ever, a state official is
justified in employing torture or otherwise illegal coercive
interrogation tactics in an attempt to avert an impending disaster.
It exam- ines whether the United States is obliged to investigate
and consider criminal prosecution of those who authorized torture
for intelligence-gathering purposes. It examines the issue of pre-
ventive detention in the conflict with al Qaeda, asking whether the
United States should be required to try al Qaeda members on
criminal charges or release them, or whether it is appropri- ate to
detain them in military custody without criminal charges. It uses
the controversy over President Bushs authorization of sweeping
warrantless electronic surveillance to assess the extent and limits
of the presidents executive power as commander in chief: Can the
president ignore valid criminal laws if he believes they interfere
with his execution of the war effort? Finally, the volume examines
the question of what Christian Parenti calls the surveillance
society: Has the United States sacrificed funda- mental protections
of privacy in essentially unwarranted ways or has it simply adapted
to the increased threat that terrorism poses? Reasonable people can
and have come down on opposite sides of all of these questions.
They are hard questions without obvious answers. Your task is to
explore their nuances, to rec- ognize the difficult issues that
lurk behind each of the debates, and to struggle, for yourself,
with finding the answer that would reflect the United States at its
best. securing l i b e rt y
15. The United States and the world after 9/11 will never be
thesame. The attacks of that day have compelled us to confrontnew
tensions between liberty and security for a decade. Thedebates will
continue as the current generation of high schooland college
students grows up, graduates, and takes on theresponsibility of
leadership and stewardship that our democracyassigns to We the
People. It is all the more essential, there-fore, that young people
grapple with these issues. The debatescovered here will continue to
be defining issues for generationsto come, and the choices we make
will determine the kind ofcountry and world we live in. in t r u c
t i n