The fear and chaos surrounding the attacks of 9/11 led to the swift passage of the Patriot Act in 2001, a quick effort to make the homeland more secure. This week Congress is reviewing the act to determine whether its measures are still appropriate nearly four years later. Originally passed while the World Trade Center was still smoking, the Patriot Act was not even read in full by most members of Congress, who were understandably more focused on pushing through heightened security measures than on preserving civil liberties. But 9/11 has long since passed, and it is time to revisit some of the law's most invasive portions.
Both the FBI and Bush administration are pushing for renewal of most of the Patriot Act's most contested portionsincluding Section 215, granting the FBI the authority to seize records of people not suspected of being foreign agents, and Section 213, authorizing "sneak and peek" searches. (Experts are currently debating these and other measures online at www.patriotdebates.com.) Opposition has come from groups such as the ACLU and the American Conservative Union, who argue that the expansion of powers granted by the law have been used for actions unrelated to terrorism prevention. What's remarkable about this debate is that the Patriot Act is now one of the few components of the "war on terror" that is being actively debated in Congress. Civil liberties groups and other concerned Republicans are doing more than simply objecting to White House policies; they're actively proposing new solutions in an effort to balance security with liberty. For once, there's a constructive debate between those who, like the White House, argue that the United States still faces imminent threats from terrorism, and those who contend that the security situation is no longer the same as it was immediately following 9/11.
This kind of public dialogue has been largely absent up until now, mainly because the Bush administration has long kept "war on terror" policymaking out of Congressional hands. The White House bypassed the legislative process back in November, 2001, when it gave itself broad power to detain terrorism suspects via military order. By bypassing the usual legislative channels in the name of national security, the administration alienated the legal community, creating a climate of resentment where a crucial dialogue about the "war on terror" should be occurring. Instead, lawyers have spent all their time and energy fighting to block the White House as it continues to skirt the law on issues like terror detentions and prosecutions. As David Rieff perceptively observed back in September of 2002:
One of the great problems with the debate about American actions in the aftermath of September 11th has been what has not been said. U.S. government officials have been
to say in public what many of them say in private, which, if boiled down, amounts to 'damn the law'; it wasn't made for these times and, in disregarding it, we are serving the higher morality of the world's real interests.' For their part, international lawyers have been understandably eager to keep the conversation limited to legal frameworks. But their inability to engage politically and strategically, or to accept that there may
be a higher morality beyond the law, has rendered their arguments quite unconvincing to American policymakers. It is a dialogue of the deaf.
As the "war on terror" drags on, it has become apparent that there is no way of knowing when this state of emergency will end. National security decisions that are made in the context of a war are, of course, different than those made during peacetime. But this administration has locked us into what seems like an indefinite war thanks to a campaign with ill-defined aims and ends. Does the war on terror include the invasion of Iraq, the war in Afghanistan, the detainment of "enemy combatants"? The answer appears to be: all of these things, and perhaps much more. The objectives of the "war on terror" have never been clearly spelled out, and without objectives, there is no real end in sight.
The protean nature of the "war on terror" means that it can become anything the administration desires, from the invasion of another country to further surreptitious apprehensions of "terrorists". Indeed, the definition of the term "terrorist" is still widely disputed. In a recent United Nations report on the subject, Secretary-General Kofi Annan highlighted the importance of getting our terms straight: "We must act to ensure that catastrophic terrorism never becomes a reality. This will require a new global strategy, which begins with Member States agreeing on a definition of terrorism and including it in a comprehensive convention." The Bush administration, meanwhile, has pushed to enshrine its own definition of "terrorist" into laws such as the Real ID Act and Patriot Act. The White House-preferred language in both laws is loose enough to deem political protestors "terrorists".
These semantic questions are no small matter. As Leslie Lebl wrote in Policy Review this month, "The Europeans
have firmly rejected talk of a 'war on terror,' preferring instead to call it the 'fight against terrorism'." The concept of a "fight" is one that a wide range of countries throughout the worldmany of which have been dealing with terrorism for far longer than the United Statescan support. Indeed, following 9/11, many countries were ready and willing to help the crackdown on global terrorism. But the administration decided to focus on waging a largely unilateral war, using extra-legal tactics that have alienated potential allies. As Phillip Carter, a lawyer and former army officer, wrote, "During the run-up to the Iraq war, the Guantanamo issue surfaced repeatedly as a bone of contention for nations opposed to the U.S. war in Iraq and its larger war against terrorism. The issue continues even today to hobble U.S. efforts to win support abroad for its actions against terrorism."
Nevertheless, the administration has pushed on, seeing international law as a hindrance rather than an asset. The Pentagon's 2005 National Defense Strategy claims that "our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism." Intangibles like international support, it seems, barely factor into the equation.
But winning the battle for public legitimacy may well prove to be crucial in the fight against terrorism. Last month, a number of former heads of state, scholars, and representatives from research groups and NGOs, met in Madrid to recommend new policies for reducing the terrorist threat. One of the major themes of the conference was the notion that international legitimacy can help countries sustain their national policies against terrorism in the long run:
[N]o nation can defeat terrorism alone, particularly when it comes to questions of international peace and security; here, a multilateral approach not only allows the sharing of political and financial costs, it also brings the international legitimacy needed to sustain national policies in the longer term."
But because America has become so unpopular around the world, the danger is that leaders of other countries may suffer a backlash from their own populations if they decide to support the U.S. in its battle against terrorism. One recent poll, for instance, indicated that 57 percent of Australians believe American foreign policies are as dangerous as Islamic fundamentalism. When that happens, cooperation in the fight against terrorism is less likely to be forthcoming, even fromor rather, especially fromour erstwhile democratic allies.
And it's not just allies abroad who have been alienated. The Bush administration has fought an extra-legal war on terror despite opposition from the judiciary at home. Even conservative Supreme Court Justice Antonin Scalia has rebuked the administration. In his opinion in Hamdi vs. Rumsfeld, Scalia called on the president to use already-existing criminal laws to prosecute terror detainees in Guantanamo. Other conservative judges, like Henry Floyd, a 2003 Bush appointee to the federal court, have likewise argued that the White House's claims to be above the law are, as Floyd put it, "a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties."
Undaunted, the Bush administration has gone on to invoke specious provisions like the "state security privilege" in order to avoid going to court over incidents of alleged wrongful detainment, and has censored a vast array of lawsuits and documents, all in the name of "national security." The constant justification, as always, is that we are at war.
There is little evidence that operating above the law has made us any safer. Last year the U.S. State Department released a report indicating that international terrorist attacks were at their highest level in 2004, at least since the report was first published. More concretely, operating outside international law may cause serious problems. The use of torture on "enemy combatants," in Guantanamo and other forward operating bases, likely means that the U.S. will not be able to charge those detainees in a court of law, where evidence obtained through torture is inadmissible. Furthermore, the torture and psychological abuse of suspects in Guantanamo has resulted in detainees who are no longer psychologically fit to stand trial, let alone provide the military any useful intelligence.
It is also disconcerting to know that, according to battlefield reports, between eight and 25 of the 202 prisoners who were released by the Pentagon are now fighting in the pro-Taliban resistance or as part of al-Qaeda. Yet, as Phillip Carter has argued, if international law had been used by the administration, this may never have happened:
International law would have allowed the United States to warehouse the Gitmo detainees until "the cessation of active hostilities" and to interrogate them, too. But by rejecting the Geneva Conventions' restrictions on Gitmo detainee operations, the U.S. also rejected its benefitscreating the situation we have today in which paroled detainees have returned to fight against us.
The White House has put an enormous amount of effort into avoiding international law: stashing away suspects in Guantanamo, trying to argue that the Geneva Conventions do not apply to detainees, writing memos authorizing torture, expanding extraordinary rendition. If just half the effort here had been put into making use of existing criminal and international law, and pushing for any legal revisions or additions deemed necessary, the fight against terrorism would have a new arsenal of weapons with the potential to curb international terrorism more effectively than the current approach. Could the Bush administration have gone about matters in this way? It seems so. The empathy and concern generated in the wake of 9/11 afforded the U.S. considerable leeway. In many ways, the current debate over the Patriot Act is the sort of thing the administration should haveand could havebeen broadly embracing all along. If any expansion of power is required to fight terrorism, the White House should take it to Congress. But instead, these issues have been decided slowly and haphazardly, primarily through the litigation process, fought point by grudging point between the White House and outside civil rights groups.
Almost four years after 9/11, it's time to take stock of where we are and what this administration has done in the name of war. Is this administration still sidestepping the law to protect the security of the country, or simply to maintain the broad executive powers it enjoys in "wartime"? A number of documents have emerged that have revealed this administration's penchant for classifying its blunders and legal maneuverings in the name of "national security", even when these maneuverings aren't actually related to security: from sealing the ACLU's case against the FBI, to keeping portions of the investigations into detainee abuse classified. Most of these moves amount to nothing more than a gross abuse of power. Indeed, it may very well not be in the interest of this administration to end the "war on terror." As Phillip Carter writes:
If the administration decides to try suspected terrorists in ordinary civilian or military courts, it must also concede that the government no longer requires extraordinary powers to fight terrorism. This would undermine administration policies in many other areasfrom the zealous enforcement of immigration laws to the use of emergency supplemental appropriations for the wars in Iraq and Afghanistan. Revising the military commission rules to look more like conventional courts-martial would be tantamount to an admission that the post-9/11 state of emergency had passed and that America could go back to being itself once again.
Indeed, it's disturbing to think that the Bush administration may well need the chaos, fear, and instability of the "war on terror" in order to legitimize its actions.