Can we be secure and free?

Public Interest, Spring, 2003 by Thomas F. Powers

The suspension of ordinary legal procedure for mainly noncitizens (but some citizens as well) has led civil libertarians to raise a broader set of questions concerning the rights of noncitizens. They are troubled that many of the expanded powers of the police single out specific groups--male Arab and Muslim noncitizens--for special treatment. While people may be willing to contemplate a trade-off between liberty and security, a curtailment of civil rights may prove more troubling. The new security policies have also been accompanied by an intensification of internal government secrecy. The surveillance, wiretapping, and investigation of private records that go with the new national security effort are necessarily to be done in secret. These policy innovations are perceived by critics to be in line with a general spirit of secretiveness said to pervade the executive branch. The Immigration and Naturalization Service (INS) has attempted to keep secret any deportation hearings related to the war on terror. The A ttorney General has encouraged all executive agencies to resist Freedom of Information Act requests where possible. Perhaps most visibly, the Department of Justice has itself consistently refused to provide information about those being detained as part of its ongoing investigations.

Last but not least, civil libertarians voice concerns about the treatment of suspected terrorists captured abroad in military engagements or arrested by foreign allies. As many as several thousand captives have been held by the American government or in its name since the attacks of September 11. Though the government insists that those detained are being treated humanely, they have been denied the status of prisoners of war (labeled instead "enemy combatants") and the protections of the Geneva Convention that go with the P.O.W. designation. The treatment of some 600 captives at a military base in Guantanamo Bay briefly gained media attention. More troubling for civil libertarians are reports of the use of methods that may amount to torture to extract information from captives held in remote locations (whether by officials of the American military or intelligence services or by agents of governments with dubious human rights records). While Harvard law professor Alan Dershowitz is willing to contemplate justi fied nonlethal torture, most other civil libertarians are not. Finally, the special status of terrorist captives has made likely the resurrection of military tribunals to try them. This has been vigorously opposed on the grounds that such tribunals smack in some general sense of authoritarianism. But more specifically, civil libertarians protest that military tribunals have lower standards of procedural protections for the accused and have a greater tendency to secrecy.

A reasonable response

The many challenges raised by the war on terror make the debate about it multifaceted and complex. This complexity itself is perhaps one reason a simple "liberty versus security" framework has gained traction. Instead of grappling with the many difficult issues involved, each side can simply appeal to a single criterion of concern. Advocates of security see in recent government policies admirable vigor; civil libertarians see them simply as a long train of abuses.