In its misguided attempts to secure the United States from terrorist attack, the Bush administration has executed what the signers of the Declaration of Independence called a history of repeated injuries and usurpations of personal liberties. Of course, until now Mr. Bush’s counterrevolution has had only marginal impact on most Americans, though it has had harsh effects for many foreigners. But the president has set in place the machinery for unscrupulous leaders to repress their opponents and to tyrannize the country, granting the chief executive in the name of national security untrammeled power to set aside the hard-won historic liberties of Americans: the right of habeas corpus (the right to challenge detention in court), the right to a fair trial, the right to be free of cruel and unusual punishment and the right to security in one’s person and communications.
Until now Congress and the courts have exerted only the slightest restraint on these measures. The Military Commissions Act of 2006 provided a fig-leaf of legality for the military tribunals that review the cases of detainees. Senator John McCain (Republican of Arizona) attempted to ban torture, but, in effect, the law still leaves it to the president to determine what kinds of treatment are allowed. A little noticed provision in a defense bill recently enhanced the president’s ability to establish martial law, and an appeals court upheld a provision denying the courts authority to review detentions of alleged enemy combatants.
In the wake of the terrorist attacks of Sept. 11, 2001, the administration has resorted to two specious arguments in support of its subversion of these fundamental rights. The first is the appeal to an unprecedented threat to national security. The second is the legal rationalization that rights constitutionally guaranteed to Americans are not enjoyed by foreigners.
Sept. 11 was undoubtedly a shock to the nation, the first time Americans had suffered an attack on their own territory since the British sailed up the Potomac during the War of 1812. But the threat was neither as immediate nor as grave as the Civil War, in which Abraham Lincoln abrogated habeas corpus, or World War II, when many Japanese and some Italian-Americans were placed in internment camps, acts for which Congress has apologized. The subversion of rights in the defense of freedom is a dangerous delusion. When national security trumps personal liberty, the soul of the American nation is corrupted.
No doubt the threat of global terrorism demands some new and different methods, but such tactics must respect the fundamental liberties of Americansand othersbe well thought through and publicly debated. Our allies, including Britain and Canada, have deliberately let post-9/11 security measures lapse. Italian and German authorities are investigating their own and U.S. intelligence officers for participation in the extraordinary rendition of foreign nationals from their territories. The chief of the Royal Canadian Mounted Police has resigned because of the Mounties’ mistaken intelligence in one case, and the head of Italian security is being prosecuted for his alleged participation in another U.S. kidnapping (rendition). It is time for the United States to join this consensus of democracies and redress the legalized offenses it continues to commit under the banner of the war on terror.
Finally, the perceived disregard of the rights of foreign nationals is an obstacle to the goal of building democracy abroad. If we Americans put ourselves forward as a beacon of liberty, then we ought not deny to others freedoms we defend for ourselves. According to standard legal histories, the right to challenge detention in the courts (habeas corpus), is central to the preservation of democracy. It is the first defense against tyranny. A new bill by Senate Judiciary Chairman Patrick Leahy of Vermont promises to secure that right again for all Americans and for foreigners detained by the government. Judicial review of detention needs to be assured for foreigners as well as Americans, lest we be a free people at home and despots abroad.