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Does the US – Led War on Terror Pose a Challenge for Civil Liberties?

Does the US – Led War on Terror Pose a Challenge for Civil Liberties?

November 30, 2014
Amaryllis Georges
Amaryllis Georges Terrorism & Human Rights Researcher

Although liberties like freedom of speech, religion, assembly and press, the right to due process, and the right to privacy have been solidified in most Americans, they seem to be antithetical to the necessity of security and all that it entails during a time of national crisis, such as that of September 11, 2001 (henceforth 9/11). One will find ample cases in US history where conceding rights for the security of the people has been an essential measure, particularly when these rights are seen as perilous. The terrorist attacks on 9/11, were so substantial that former President George W. Bush just days later announced America’s war on terror, which “begins with al-Qaeda, but…does not end there.”[1] The President’s words denoted an unrestricted fight, which cast a wide net for anyone and everything that endangered Americans and their rights. Thus, America’s war on terror became a “crusade against [an] evil,”[2] where it is implied that sacrifices will be essential. Wars inevitably have an expiration date, yet terrorism can only be decreased from recurring.[3] The war against terror required new tools, which former President George W. Bush asked from Congress; tools concerning “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” also known as the “USA Patriot Act.” Terrorism as a threat has been employed to give reason for new and uncompromising legislation, which authorizes authorities and intelligence agencies’ unparalleled powers to arrest and interrogate whomever they believe has information related to terrorism.[4] The issue of civil liberties versus protection tradeoff has been one of great controversy; in other words when to give precedence to confidentiality and when to civic security. Terrorism does not establish an adequate and immediate threat to give good reason for the counterterrorism legislation and security measures undertaken by the US post 9/11. The measures resulting from America’s war on terror are an infringement on civil liberties and in fact may do the terrorist’s work for them, by proliferating the fear from terrorism. Below, I will delve into the challenges a democratic society meets as it deals with the swap involving liberty and security caused by the horrific 9/11 terrorist attacks.

The Magnitude of the Threat of Terrorism

When compared to other threats, such as natural disasters, crime, war, and disease, terrorism is an unlikely threat.[5] Indeed, the chances of being killed in a terrorist activity, even after 9/11, are less than being killed by lightning strikes or bee stings.[6] However, in the US the government describes terrorism as “a clear and present danger to Americans today,”[7] which in accordance with Davis and Silver’s findings, the greater the concern, the more willing people are to prefer security over civil liberties.[8] Those in support of the strict counterterrorism measures deem that, although the threat to counterterrorism may be less in comparison to other threats, in the “future”, this threat, which may be termed as super-terrorism, is considerable to the point that it excuses the suspension of civil rights.[9] That mere chance that a terrorist act can annihilate hundreds of thousands of civilians instantaneously, is enough to place terrorism as a far more considerable threat than those caused by poverty, crime, or disease.[10] Be that as it may, does the threat of a possible terrorist act validate the breach of civil rights and the encroachment of human rights, such as torture? Validating extreme counterterrorism actions, presumably, entails more than assuming possibilities; it involves an unambiguous evaluation of the chances of possibility, especially weighed against the probability of further future threats.[11] Therefore, the likelihood of a terrorist act in comparison to other threats is slim, and claiming that in the future terrorism will pose a greater threat is evasive and ambiguous.

Aside from threatening lives, terrorism also terrorizes one’s emotional security by instigating suspicion and panic. Because the threat that is induced by terrorism is different form other threats such as SUV accidents, in that terrorist attacks are perceptible and dreadful, we seek comfort and security, which are not, for the most part, sought after threats of reduced graphics that are probably more menacing to our existence and safety.[12] “By their extreme violence and seeming randomness, terrorist attacks can radically undermine victims’ basal security.”[13] For the above reasons, namely, that terrorism induces panic, uncertainty, disturbs the sense of confidence and security in a community, in addition to being a danger to man, excessive counterterrorism actions are deemed to be warranted.[14] Having said this, it is wrong to assume that challenging civil liberties so as to put a stop to terrorism is defensible because of the danger it causes and the horror and nervousness it generates. In fact extreme counterterrorist measures can be counterproductive. Although the “reduction of due process may make it more likely that terrorist suspects will be convicted,” this is not necessarily of usefulness.[15] For instance, in convicting an Al-Qaeda extremist, no restrictive outcome will occur; on the contrary, the end product may be the opposite, in that there could be greater chances that the nation doing the penalizing is subject to terrorist violence.[16] Therefore, America’s response with its war against terror may have been just what Al-Qaeda and other Islamic radical groups were hoping for.[17] The US, at the end of it all appears to be harsh and oppressive. The Catch-22 of liberal democracies concerning terrorism is profound because the government is always the “loser” regardless of their counter.[18] This is because if the nation chooses to act passively and seems incapable of safeguarding lives, then the government loses its authority.[19] If the government opts for a harsh reaction and challenges civil liberties, then it will lose the support of the public.[20] The dilemma that in fighting evil the state becomes evil itself is ever-present. On what level is the infringement of civil liberties acceptable when fighting terrorism? The closer to the war model or a securitized, militarized criminal justice model, the closer the danger of moving from terrorism to state terror.

USA Patriot Act

“Americans should watch what we say and what we do.”[21]
(Press Secretary Ari Fleischer).

 In essence the USA Patriot Act, obscures the boundary between the gathering of intelligence to combat terrorism and pulling together substantiation for criminal proceedings. Some of the many authorizations that the USA Patriot Act permits, and which by extension violate the constitution, are an increase in subpoena power over communications. These authorizations give agencies, such as the FBI, rights to hack computer networks and spy on voicemails without a court ordered warrant, and expands to access of medical, education, financial, and business records. All that is necessary is for authorities to declare that the information bears some relevance to a criminal investigation and search warrants are promptly issued.[22] It is this increase in surveillance that has prompted the New York Times to label the FBI’s authority as “nearly unbridled power to poke into the affairs of anyone in the United States, even when there is no evidence of illegal activities.”[23] The President’s proposal for a revisit to the World War II and Korean War informant method by means of a Citizen Corps that would draft Americans to disclose any movement that could be construed as questionable to local authorities or the FBI is also worth mentioning.[24] Additionally, homes and public gatherings can be monitored in addition to the placement of secret agents in places of worship, devoid of any terrorism action. Furthermore, any non-citizens whom the attorney general, in accordance to reasonable evidence, considers a threat for national security, may be detained by the government sans criminal sentence.[25] The establishment of military tribunals by former President Bush II gave power to the executive branch, which was never before seen.[26] These military tribunals, closed off from the public, try suspected terrorists without a jury or rights of appeal, and effectively, can lead to a death penalty. Imprisoned Afghan fighters have been treated by the Bush administration as criminal prisoners, as opposed to prisoners of war, and in certain situations have been turned over to foreign intelligence services, known to the US to be free from constrains for utilizing torture.[27] In the US, scores of people are in custody as liabilities to security – many in solitary incarceration, regardless of the fact that there is no official conviction of crimes. It is no secret that America tortures terrorism suspects in Guantanamo Bay, almost 600 of which are 80 year-olds suffering from dementia.[28] In fact, an American arrested along with Afghan military was tried as a traitor as opposed to a POW; consequently, sidestepping the Geneva conventions.[29]

The main defects of the act are that it “imposes guilt by association on immigrants[,]…it authorizes executive detention on mere suspicion that an immigrant has at some point engaged in a violent crime or provided…aid to a proscribed organization[,] and it resurrects ideological exclusion.”[30] Those in support of the act deem that in societies that are technologically superior, intelligence gathering is a necessity for effectual counterterrorism. Secret detentions are seen as crucial, since terrorists may have information of high importance.[31] Those opposed to the act view it as a contravention of the right to privacy and that it “unfairly applies the right to due process of the law found in the Fifth, Sixth, and Fourteenth Amendments” as the Supreme Court has granted non-citizens with these rights.[32] Civil libertarians have opposed, among other things, governmental access to telecommunications surveillance, the expansion of wiretapping, and the usage at airports of x-ray machines, which can ascertain the concealment of arms under clothes. As concerns the latter safety measure, it is somewhat encouraging that the images are rather opaque and individuals must sign an agreement form for them to be scanned. The USA Patriot Act is a stark example of the more often than not, indulgence of overreaction societies tend to allow for when endangered and vulnerable. It awakens severe constitutional unease, even supposing that such actions would strengthen security. The act reserves austere actions against immigrant minorities, specifically Arabs and Muslims, by sacrificing their rights for the majority’s security. By punishing lawful, passive, and counterterrorist movement, the US government is likely to exhaust important resources pursuing uninvolved political action, encourage the progression of underground activity, fortify extremism and extremists, and make the cooperation of those, which will unavoidably be the target of such broad-brush canons of law enforcement, unlikely.[33]

Because of the trade between freedoms and security, the Patriot Act’s immigration stipulations fall short to the actual duty to freedom, which President Bush has said that US is fighting in favor of.

“Torturing terrorism suspects, allowing indefinite detention and reducing the standard of proof required for arresting suspects and for conducting wire-taps, searches and other intelligence-gathering procedures might prevent some individuals from committing terrorist acts, but it is unlikely to affect the overall threat from terrorism.”[34]

Hence, the laws enacted following 9/11, along with the possibility of open-ended detention, military tribunals, and torture, threaten not only the lives of many innocent, but they also abuse democratic norms, for instance entitlement to a free trial. Perhaps then, the threat is the security measures placed by the state itself. In fact, counterterrorist measures are rarely revoked, but are evocative of measures taken to fight terrorism by some internationally incriminated military or authoritarian dictatorship.[35]

The war on terrorism can be compared to that of the war on drugs, in the sense that the US is employing its military for hostile police-work of sorts.[36] This attitude has consequences. Unlike wars between countries, a war against terrorism has no end. An open-ended war implies that the infringements of civil liberties and the harm on democratic rights may also be incessant.

Racial Profiling: The Alienation of Arabs and Muslims

People whose civil liberties have been violated in the past are less disposed to give up their rights following the war on terror, compared to those whose liberties have never been threatened.[37] Such as African-Americans for example, who choose higher civil liberties even at the cost of insecurity and terrorism.[38]

In 2003, about 1,200 Muslim aliens had been detained by authorities in connection with terrorism and out of those only one had been formally charged with an offense in relation to the 9/11 attacks.[39]  The rest were arrested on the weakest of proof. They were either not accused of any offense, found guilty of insignificant immigration offenses – for which one would customarily not be jailed for, or charged with offenses like withholding information and misleading the FBI.[40] Hence the government has held detainees on suspicion alone or for trivial violations, even if the probability of them being terrorists or involved in terrorist activity is low.[41] Additionally, the Justice Department had sped the process of deporting 6,000 individuals who were in abuse of their immigration standing, exclusively grounded upon their national or racial origin –essentially resorting to discriminatory prosecution.[42]

Following 9/11, there is a difference between terrorizing and hating someone because they look Arab and between distinguishing an Arab-looking man at airport security whose behavior may potentially be suspicious, for further inspection.[43] The former is racism; the latter is analytical inference.[44] M. Kinsley, among other scholars, deem that statistically “an Arab-looking man heading towards a plane is…more likely to be a terrorist.”[45] That said, even impartial and analytical discrimination has casualties, which is why such generalizations are unethical.[46] Despite the fact that such generalizations are statistically valid and not acting upon analytical inferences may have costly repercussions – although the likelihood of that is infinitesimal, they nonetheless are discriminatory and abusive generalizations.[47] Contrary to findings from a study by D.W. Davis and B.D. Silver – that people prefer civil liberties to security in the context of racial profiling[48] – the case with the three Arab men who although having cleared the security check, were singled out by the rest of the passengers on the plane who insisted the three men be removed, disputes the study’s results.[49] The passengers aboard the aircraft were generating a cost-benefit and probability analysis misrepresented and distorted to such a degree that it equates to plain racism and the fact that Northwest Airlines complied was disgraceful.[50] Stereotyping groups and racially profiling can lead to the investigation and arrest of innocent people who have been singled out merely on their possible objectives and their religious, racial, or ethnic affiliations. Rather than detaining based on racial characteristics, face-recognition software, which is more efficient, should be used.[51]

The End Justifies the Means

Although I am in disagreement with the following concept, some scholars believe that it is a problematic approach to prioritize liberties.[52] Those who declare that basic civil rights should be forfeited to fight terrorism, do so in accordance with the premise that terrorism bears a threat far more critical than other threats and that impairing civil liberties and safeguards is the most productive course to fighting terrorism.[53] There are scholars who deem that the importance level of security and liberty shifts according to the circumstances and in the case of 9/11, it only makes sense that civil liberties will be reduced.[54] When a nation feels safe, judges are more likely to strengthen liberty interests.[55] The more imminent a threat is to a nation, the fiercer the grounds for seeking for pursuing repression of such action, despite the forfeiture of liberty.[56] It is believed that the advantage in higher security counterbalance the sacrifices of reduced liberty.[57] The example of Lincoln’s undemocratic ways throughout the Civil War is provided as a case in point that at times lawfulness should be curtailed for other ideals.[58] R.A. Posner’s parallelism between the war on terror and the war on drugs, surmises that in the latter the police must rely on

“heavily paid informants, undercover agents, wire-taps and other forms of electronic surveillance, elaborate sting operations, the infiltration of suspect organizations, random searches, the monitoring of airport, the profiling of likely suspects on the basis of ethnic or racial identity or national origin, compulsory drug tests, and other intrusive methods that put pressure on civil liberties.”[59]

It is concluded that rather than wasting efforts and resources on the war on drugs, attention should be focused on the war against terrorism, “by doing so”, Posner says, “we may be able to minimize the net decrease in our civil liberties.”[60]

What Can Be Done to Avoid a “Big Brother” State?

Democracies can protect their state without having to turn to extreme measures that threaten democratic values and liberties. In acting within clearly defined judicial and constitutional boundaries it makes it difficult for the government to act in a ruthless and undemocratic manner. The end does not justify the means; if it did the democratic nation would be on par in terms of morality as the terrorists.[61] The government must be firm and maintain the rule of law, while being transparent with its collective, otherwise what will separate it from a dictatorship or an authoritarian regime? Additional transparency must be found in the legal cases; it is vital that terrorists are tried in a court of law.

Despite the fact that the US government has for the most part respected its people’s civil liberties, it has allowed infringements in times of peril. The US’s war against terrorism walks a fine line between creating a safe environment for its citizens and creating fertile ground for a totalitarian government reminiscent of George Orwell’s eerie war novel, 1984.[62] The ripple effect that began on 9/11, with the subsequent affirmation of a war on terror can conceivably regressively propel us to the disastrous abuses on civil liberties of the Cold War.[63] Will we let the terrorists go beyond the mass murder of people and the destruction of soaring buildings? Will we let them destroy the sheer bedrock of US liberties and freedoms?[64] In the words of L.H. Tribe, who neatly sums up my stance on the debate of civil liberties versus security, “it is ‘We the People’ in whose name the Constitution was ordained and established; it is we who bear the responsibility to live by it even when the temptation to set it aside seems irresistible.”[65] The US – led war on terror has posed a challenge for civil liberties by not upholding democratic values and the rule of law. The US, with its draconian actions is setting all the wrong examples and paving the way for the terrorists. To name a few – by making use of torture techniques, increasing surveillance to an inexcusable extent, racially profiling, and effectively placing immense power on the executive the United States is going against not only all that it stands for, but, against all it is currently fighting for.

References

Bush. G.W. 2001. George W. Bush Address to Joint Session of Congress and the American People on September 20, 2001. Available from: www.georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html

Cole. D. 2003. “Let’s Fight Terrorism, Not the Constitution” in Etzioni. A. and Marsh. J.H. Rights vs. Public Safety After 9/11: America in the Age of Terrorism. Pg. 19-24. Rowman & Littlefield Publishers, Inc.

Davis D.W. and Silver. B.D. 2004. “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America.” American Journal of Political Science. 48(1): 28-46.

Enders W. and Sandler. T. 2009. “The Political Economy of Terrorism.” Cambridge University Press.

Etzioni A. and Marsh.J.H. 2003. “Antiterrorism Tools: A Summary of the USA Patriot Act” in Etzioni. A. and Marsh. J.H. Rights vs. Public Safety After 9/11: America in the Age of Terrorism. Pg. 19-24. Rowman & Littlefield Publishers, Inc.

Heymann. P.B. 2003. “Terrorism, Freedom, and Security: Winning Without War.” London, England: The MIT Press.

Hoffman. B. 2006. “Inside Terrorism.” Columbia University Press.

Hornestay. D. 2008. “Security vs. Civil Liberties: Can We Have Both Under the Threat of Terrorism?” Available from: www.suite101.com/content/civil-liberties-and-security-a47365 [Accessed 23 March 2011].

Kinsley. M. 2003. “Discrimination We’re Afraid To Be Against” in Etzioni. A. and Marsh. J.H. Rights vs. Public Safety After 9/11: America in the Age of Terrorism. Pg. 53-55. Rowman & Littlefield Publishers, Inc.

Kuzma. L.M. 2004. “Security versus Liberty: 9/11 and the American Public” in Crotty. W. The Politics of Terror: The U.S. Response to 9/11. Boston, Northeastern University Press.

Lobel. J. “The War on Terrorism and Civil Liberties.” Available from: http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf [Accessed 23 March 2011].

Mclean. S.L. 2004. “The War on Terrorism and the New Patriotism” in Crotty. W. The Politics of Terror: The U.S. Response to 9/11. Boston, Northeastern University Press.

Mileur J.M. and Story. R. 2004. “America’s Wartime Presidents: Politics, National Security, and Civil Liberties” in Crotty. W. The Politics of Terror: The U.S. Response to 9/11. Boston, Northeastern University Press.

Moore. M. 2004. “Fahrenheit 9/11.” Documentary. Dog Eat Dog Films.

Posner. A. 2003. “The Truth About Our Liberties” in Etzioni. A. and Marsh. J.H. Rights vs. Public Safety After 9/11: America in the Age of Terrorism. Pg. 25-28. Rowman & Littlefield Publishers, Inc.

Tribe. L.H. 2003. “We Can Strike a Balance on Civil Liberties” in Etzioni. A. and Marsh. J.H. Rights vs. Public Safety After 9/11: America in the Age of Terrorism. Pg. 15-18.  Rowman & Littlefield Publishers, Inc.

Wilkinson. P. 2006. “Terrorism versus Democracy: The Liberal State Response.” Routledge.

Wilkinson. P. 1986. “Terrorism and the Liberal State.” Macmillan Education Ltd.

Whittaker. D. J. 2003. “The Terrorism Reader – Second Edition.” Routledge.

Wolfendale. J. 2007. “Terrorism, Security, and the Threat of Counterterrorism.” Studies in Conflict and Terrorism. 30(1): 75-92.


Footnotes

[1] George W Bush address to a joint session of Congress and the American people on September 20, 2001. Available from:

www.georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html

[2] Hoffman. B. 2006. 20.

[3] McLean. S.L. 2004. 79.

[4] Wolfendale. J. 2007. 75.

[5] Ibid. 76-77.

[6] Ibid. 77.

[7] Ibid. 78.

[8] Davis. D.W. and Silver. B.D. 2004. 35.

[9] Wolfendale. J. 2007. 78.

[10] Ibid. 78.

[11] Ibid. 79.

[12] Ibid. 80.

[13] Ibid. 81.

[14] Ibid. 82.

[15] Ibid. 82.

[16] Wilkinson. P. 1986. 297; Wolfendale. J. 2007. 82.

[17] Wilkinson. P. 2006. 64; Wolfendale. J. 2007. 82-83; Whittacker. D.J. 2003. 265.

[18] Enders. W. and Sandler. T. 2009. 50-51; http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 25.

[19] Enders. W. and Sandler. T. 2009. 27; http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 25.

[20] W. Enders. and Sandler. T. 2009. 27; http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 25.

[21] http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 27.

[22] Kuzma. L.M. 2004. 162; Mileur. J.M. and Story. R. 2004. 123-124; Heymann. P.B. 2003. 91.

[23] Mileur. J.M. and Story. R. 2004. 124.

[24] Ibid. 123.

[25] Kuzma. L.M. 2004. 162; Mileur. J.M. and Story. R. 2004. 123; Heymann. P.B. 2003. 91.

[26] Wilkinson. P. 2006. 63; Kuzma. L.M. 2004. 162; Mileur. J.M. and Story. R. 2004. 123; http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 32.

[27] Mileur. J.M. and Story. R. 2004. 123.

[28] Wolfendale. J. 2007. 75, 84, 86; Wilkinson. P. 2006. 62-63.

[29] Mileur. J.M. and Story. R. 2004. 123.

[30] Cole. D. 2003. 36.

[31] Kuzma. L.M. 2004. 163.

[32] Ibid. 163.

[33] Cole. D. 2003. 36, 42.

[34] Wolfendale. J. 2007. 83.

[35] Ibid. 84.

[36] Mileur. J.M. 2004. 126.

[37] Enders. W. and Sandler. T. 2009. 35-36; Davis. D.W. and Silver. B.D. 2004. 31.

[38] Enders. W. and Sandler. T. 2009. 35-36; Etzioni. A. 2003. xiv;  Davis. D.W. and Silver. B.D. 2004. 31.

[39] http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 32; Heymann. P.B. 2003. 91.

[40] http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 32-33.

[41] http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 34; Heymann. P.B. 2003. 91.

[42] http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 35; Heymann. P.B. 2003. 92; Tribe. L.H. 2003. 16.

[43] Kinsley. M. 2003. 53; Etzioni. A. 2003. xii, xiv-xv.

[44] Kinsley. M. 2003. 53.

[45] Ibid. 53.

[46] Ibid. 54.

[47] Ibid. 54.

[48] Davis. D.W. and Silver. B.D. 2004. 33.

[49] Kinsley. M. 2003. 55.

[50] Ibid. 55.

[51] Tribe. L.H. 2003. 17.

[52] Posner. R.A. 2003. 25.

[53] Wolfendale. J. 2007. 75-76.

[54] Posner. R.A. 2003. 26.

[55] Ibid. 26.

[56] Ibid. 26.

[57] Ibid. 26.

[58] Ibid. 27.

[59] Ibid. 27.

[60] Ibid. 28.

[61] Wilkinson. P. 1986. 126.

[62] http://chapters.rowmanlittlefield.com/07/425/0742535983ch2.pdf. Pg. 31.

[63] Ibid. Pg. 31-32.

[64] Tribe. L.H. 2003. 15.

[65] Ibid. 18.

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