The Veneer of Civilization

Are civil liberties and human rights a strategy for peace or a casualty of terror?

The terrorist attacks of September 11 are testing America's legal resolve on human rights at home and abroad. The Bush administration's declaration of a war on terrorism puts the highest priority on national security. Civil libertarians and human rights activists warn, however, that many measures undertaken in the name of this war violate the US Constitution and international human rights laws. With the war's goals so open-ended (When is a war on terrorism "won"?), the ideological standoff between national security on the one side and civil liberties and human rights on the other is likely to stretch on for years. It's a standoff with the potential to reshape domestic and international jurisprudence.

"In the early days after September 11, it was imperative to 'do something,' to comfort and arouse the American people," says Arthur Helton of the Council on Foreign Relations. "We're coming back to our sense a bit, but if something else happens, it will reorient everything."

With the future so uncertain, there are many more questions than answers about how to balance security and rights. Can the US fight terrorism without employing such police-state tactics as secret quasi-judicial proceedings, delayed notice of search warrants, and the authorization of wiretaps without a showing of probable cause, all newly permitted in the wake of September 11? When do national security measures cross the line from the legitimate exercise of government power to unconstitutional overreaching? How America addresses these and myriad related issues has broad historical implications. Will this be seen as the period America embraced the
Constitution and international human rights law as the path to peace and security, or the period America came to distrust the rule of law because it made open and free societies open and free to terrorists?

One thing is already in evidence. Many people are worried that with the government focused on protecting citizens from violent extremists, it may fail to protect Americans-and people everywhere-from abuses of its own power. BC Law Professor Daniel Kanstroom expresses it this way: "History has shown that societies may face dangers from governments that can be as grave as those posed by so-called terrorists and criminals. The key is balance within the rule of law. Even when we feel fear, we need transparent, clear procedures that protect human rights."

Domestically, concerns for the rule of law were raised almost immediately after the terrorist attacks, when the USA PATRIOT Act was signed into law. Critics say the 342-page bill, which passed the House 356-66 and the Senate 98-1 in October with almost no debate, broadens the executive branch's investigative, surveillance, and prosecutorial powers, impinges on First and Fourth Amendment rights, strips immigrants of well-established constitutional protections, and bypasses judicial oversight of executive actions.

Then came the issue of military tribunals. Even though federal civilian courts have successfully heard and disposed of terrorism cases in the recent past, including the 1993 World Trade Center bombing case, President George W. Bush last November ordered the creation of military tribunals to try non-citizen terrorist suspects. The Defense Department was criticized by the American Bar Association and others for proposing tribunals lacking standard constitutional safeguards-presumption of innocence, an independent judiciary, trial by jury, unanimous verdicts, public proceedings, due process, and the right of appeal. Defense has been drafting proposed regulations in response. Critics acknowledge that military tribunals can be fair and just, but some of them still chafe at tribunals' lack of independence. As Barbara Olshansky of the Center for Constitutional Rights has written, in military tribunals the same actor is "rule-maker, investigator, accuser, prosecutor, judge, jury, sentencing court, reviewing court, and jailer or executioner."

There has also been an outcry against the US Immigration and Naturalization Service's post-9/11 round-up of hundreds of Middle Eastern men, a move eerily reminiscent of the World War II round-up of Japanese Americans on the West Coast. Since the terrorist attacks, INS has been indefinitely holding non-citizen immigrants in secret detention, subjecting them to closed quasi-judicial proceedings, denying them access to lawyers and family members, and keeping the public and the press from learning who they are and how they are being treated.

Similarly, questions have been raised about the detention of several hundred captured Taliban and Al Qaeda fighters at the US Naval Base at Guantanamo Bay, Cuba. The Lawyers Committee for Human Rights contends that the Bush administration has taken a rather confused stance on the legal status of the detainees. The administration says it believes in the principles of the Geneva Conventions on the treatment of prisoners of war (for example, freedom from torture and cruel and unusual punishment), but it has not made a formal determination of the legal status of the Guantanamo detainees, as the Geneva Conventions require. Whether the detainees are POWs affects their legal rights; the conventions say, for instance, that POWs must be repatriated when war is over. But, as Kanstroom wonders, who's to say when this so-called war is over? "If we incarcerate them for the rest of their lives without due process, we run up against human rights laws," he observes.

On the global front, the war on terrorism and America's response to it have brought into sharper focus US foreign policy as it pertains to human rights worldwide. Proponents of international human rights law are growing more vocal in their demands that the US align its foreign policy with the international human rights agenda. They are increasingly critical of the US refusal to support the International Criminal Court in The Hague, established in April (the Bush administration refuses to submit the treaty to the Senate for ratification); of US economic and strategic alliances with oppressive regimes; of the US's sparing foreign aid to assist fledgling democracy movements or to shrink the global gap between rich and poor; of US refusal to sign key international human rights treaties; and of the US reflex to assert its interests through military power rather than the power of persuasion. Human rights scholar Robert F. Drinan, S.J., sums up this perspective when he says, "We have inherited a new world morality, but the current mood is, 'we don't need the world, we can do it ourselves.'" Drinan, who is a Georgetown law professor and former BC Law dean, continues, "The US has blind spots. We don't really want to be players in the world."

The panic that gripped the nation on September 11 forced Americans to ask what it means to live within the bounds of civil liberties and human rights in the face of danger and fear. International human rights law provides for the short-term suspension of certain rights in favor of security in the case of emergencies, but requires the speedy restoration of human rights guarantees. The US comes to the question with a body of judicial precedent in place, but the jurisprudence on where the boundary exists between national security and the Bill of Rights is expected to evolve as the courts begin considering challenges to post-9/11 government action.

Allan Ryan, adjunct professor and former prosecutor of Nazi war criminals, teaches a course at BC Law called the Law of War, War Crimes, and Genocide. He observes that America's well-established civil liberties infrastructure has already initiated challenges to the new terrorism-provoked security laws. In March, a Massachusetts judge decided that police could not claim vague "homeland security" warnings as grounds for stopping a motorist near a reservoir, and ruled that the stop had violated the constitutional prohibition against unreasonable searches and seizures. That same month, a New Jersey state court ordered the INS to permit the American Civil Liberties Union (ACLU) access to records of INS detainees (the INS has won a stay of that order pending appeal and continues to block voluntary departure or deportation of detainees). In April, a federal district judge in Michigan ruled that the INS's insistence on holding closed deportation hearings against a Muslim community leader violated the Constitution. Each of these cases was brought by the ACLU.

How the US responds internally to terrorism and human rights has legal implications beyond its borders. "Countries are now using the language of terror to suspend the civil rights of government critics and use force against them," says Kerry Kennedy Cuomo '87, founder of the Robert F. Kennedy Memorial Center for Human Rights, in Washington, DC. Zimbabwean President Robert Mugabe has used the war on terrorism as an opportunity to brand his political opponents as terrorists. Russian President Vladimir Putin defended brutal government action in Chechnya with war-on-terrorism rhetoric, as did the Chinese government when it claimed that Muslim separatists in the Xinjiang Province are linked to al Qaeda. Under the banner of fighting terrorism, Egypt has defended its practices of torture and summary military trials. Democracies, including India, Canada, and Britain, have either passed or are considering legislation modeled on new US laws, complete with sweeping provisions on detention, security, and the use of military tribunals.

Maryam Elahi '86, director of the Human Rights Program at Trinity College, worries that with its post-September 11 anti-civil libertarian policies, the US has lost the authority to be a legitimate critic of other governments' human rights actions. There is evidence that her concerns are well-founded.

Each year, the State Department presents an annual report to Congress on the state of human rights around the world. The latest report, issued in March for the year 2001, condemned many countries for their use of military tribunals, long-term detentions, and lack of due process; yet the US is now guilty of these practices, too. Every year, the report criticizes Israel for taking the position that it will comply with the Geneva Conventions with respect to Palestinian detainees, but is not governed by them; now, the US has taken a similar stance with respect to the prisoners at Guantanamo. The State Department also issues an annual report on international religious freedom. The most recent report, issued last December, omitted Uzbekistan, Saudi Arabia, and Turmenistan, all known violators of religious freedom, from the category of "countries of particular concern." "Many of these states are on the frontline with the US in the Afghan war, so they're not on the list," says Kenneth Roth, executive director of Human Rights Watch, suggesting that the US cannot maintain the human rights high ground when it makes strategic alliances in the war on terrorism with states that routinely disregard international human rights law.

There is also growing concern among government critics that measures favoring security over civil liberties and human rights can erode the ability of the US to invoke for itself the protections of international law, putting soldiers and citizens abroad at risk. Human rights law operates on the element of reciprocity. If the US ignores international law, it becomes harder to seek its protection. William Schulz, executive director of Amnesty International-USA, says if the US wants to ensure that other nations will afford American citizens the protections of the Geneva Conventions, it must concede that it is bound by those conventions. He adds that if the US wants to live under the rule of law at home and maintain the support of its democratic allies abroad, it must afford non-citizens and detainees their constitutional due process rights.

Some advocates say that rather than view human rights as an impediment to security, the US should seize human rights as its primary anti-terrorism strategy.

US policy has not done enough to correct the conditions that breed terrorists, says Peter Rosenblum, assistant director of the Harvard Human Rights Program. In the 1960s and 1970s the US disengaged from being a cooperative force in the world, he explains. Foreign assistance was cut back considerably, as were fellowships abroad. "We give Africa less than what we give to the Colombia drug war. We haven't been supporting education in these countries and supporting open societies and alternative visions. We spend our money on humanitarian relief or on weapons, not on infrastructure. We have left a space for terrorists to train children," he says.

Traditionally, the human rights movement has relied on moral and legal rhetoric to articulate the need for human rights, according to Amnesty's Schulz. But since September 11, he says, the movement has a new message: that human rights are critical for national security. He believes that the movement risks being marginalized and rendered irrelevant unless it can persuade politicians of the connection between human rights and national security. "We need to make an explicit link between economic oppression, promoting democracy, human rights, national security, and international security," he says, the link being that the conditions that breed terrorists are the very conditions that would be eliminated by the consistent enforcement of international human rights law.

Human rights activists say it is unusual for terrorists to come from countries with institutionalized outlets for peaceful political expression, inclusive social structures, and economies that allow for widespread human advancement. If Americans want to live in a world that doesn't breed terrorists, says Schulz, then they must build stable societies premised on economic and social rights, protection of minority rights, due process, free press, free elections, and democracy.

Pointing to the Saudi nationality of many of the September 11 hijackers and the repressive Saudi regime, Human Rights Watch's Roth says, "A Saudi who is unhappy has three bad choices. He can acquiesce, be exiled, or engage in violent opposition. If the West wants to defeat terrorism at its source, it must defeat societies that are generating terrorists." Roth disputes the conventional wisdom that poverty breeds terrorists as too simplistic, noting that the September 11 terrorists were members of the middle class. What breeds terrorism, he contends, are societies that deny people the opportunity to seek peaceful change and exclude them from participating in economic, social, and cultural life.

Drinan says that any distinction between political and civil rights on the one hand, and economic, social, and cultural rights on the other, is superficial. "All human rights are indivisible and inseparable," he says. "We need economic and political rights."

His view mirrors a trend in the international human rights movement that was well under way before the terrorist attacks. "There is a growing recognition that democracy means more than free elections," says Schulz. He argues that a country with free elections-a basic measure of democracy-but without a free press, economic rights, high literacy rates, and adequate nutrition, is hardly an enviable democracy. Last August, Amnesty International, the world's oldest human rights organization, which has long kept its focus concentrated on political and civil rights, widened its mandate to incorporate the causes of economic, social, and cultural rights.

So, will the rule of law, with its built-in civil liberties and human rights protections, become a strategy for peace or a casualty of terror? For now, the answer appears to be a little bit of both. "When our concern with war, drugs, crime, subversion, invasion, immigration, and the like predominates, the impulse for restraint grows stronger. In times of peace, prosperity, and a generally low index of fears, restraint recedes," says Allan Ryan. The long-term implications for American law? "My expectation is that claims of privacy and undue intrusion by the government will not fare especially well if the government can demonstrate a link to terrorism, and that this effect will ripple out to claims of privacy generally. Eventually, the pendulum will swing; it always does, but it may take a while." As Ryan suggests, history will provide the ultimate answer, but as human rights activists like to point out, history isn't destined. America can choose how it will respond.

Jeri Zeder is a member of the Massachusetts bar and regular contributor to this magazine. She is a consultant to the Democratic Literacy Project of Hunt Alternatives, a private nonprofit devoted to democracy, peace, and social change.