Civil Liberties and the War on Terror: The First Decade

After a national tragedy, irony dies. Skepticism dies. Partisan division dies. We come together, as a country.

This is good for national healing, but very bad for civil liberties. Just as the Wall Street Bombing had 81 years before, the 9/11 attacks made Americans more paranoid about first-generation immigrants and foreign languages, more hostile towards Europe, more susceptible to right-wing nativism, and more willing to concede their personal liberty. The attacks did the same thing to civil liberties activism that they did to the rest of our country: harm.

On September 20th, President Bush formally declared a War on Terror--one that "will not end until every terrorist group of global reach has been found, stopped, and defeated."

Because terrorism is a category of crime, the War on Terror can be properly described as a permanent global police action comparable in character to the War on Drugs--except that, unlike the War on Drugs, the War on Terror was also an explicit military doctrine. The new Afghanistan War began on October 7th, and with it the use of Guantanamo Bay as a detention facility.

Many legislators hadn't actually read the 342-page PATRIOT Act before they voted it in, but that didn't stop them from passing it 357-66 in the House and 99-1 in the Senate.

The Act contains some policies that should have at least generated debate--and a few legislators made an honest attempt to resolve some of these concerns later--but for the most part, the changes it has made to our federal criminal justice system have been accepted without much public skepticism or mainstream debate.

The single most frightening aspect of the Bush administration's post-9/11 civil liberties policy was its decision to imprison two U.S. citizens, José Padilla (shown left) and Yaser Esam Hamdi, as sub-citizen "enemy combatants" without giving them access to counsel--denying citizens' habeas corpus rights on a public, official federal level for the first time since World War II.

If it were not quickly quashed by the judiciary, this would have functioned as a U.S. Night and Fog Decree for suspected terrorists and others deemed undesirable by the Bush administration.

Leaders in the Bush administration knew, when they imprisoned U.S. citizens as "enemy combatants," that it would probably be a temporary measure overturned by the federal judiciary. And they turned out to be right; in Hamdi v. Rumsfeld (2004), every Supreme Court justice except one agreed that the decision to designate Hamdi and Padilla as "enemy combatants" and detain them indefinitely without due process protections was unconstitutional.

Bush's only ally was Justice Clarence Thomas, who argued that the president may suspend the Constitution at will if he believes, or claims to believe, that he is doing so to protect the country.

That the United States used torture in the War on Terror is indisputable; President Bush admitted in September 2006 that the CIA had used "an alternate set of [interrogation] procedures" on several high-profile suspects, the Abu Ghraib scandal testified to its military application.

But when British nationals Ruhal Ahmed (shown left), Asif Iqbal, and Shafiq Rasul were released from Guantanamo Bay, their testimony suggested that torture may have been more widespread than previously thought.

When the Times learned that the Bush administration was conducting an illegal surveillance program in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act, they agreed--in the interests of national security--to sit on the story for a year.

Once they went public, Arlen Specter protested, the ACLU sued, and the Senate revised FISA to accommodate the program.

The U.S. government hasn't always observed the Fourth Geneva Conventions, but the Bush administration's attempt to create a category of "enemy combatants"--prisoners who receive neither civilian nor noncivilian human rights protections--was always legally suspect.

The Supreme Court thought so, too, in a 5-3 ruling. The Republican Congress tried to create a loophole by passing the Military Commissions Act, but the writing was on the wall. The "enemy combatants" designation wouldn't last.

Secret prisons were the stuff of conspiracy theories until Bush confirmed their existence in a speech in which he also admitted to the use of "alternative" interrogation methods. Documents later told us that these methods had been used at least 266 times.

Bush's speech revealed how much the War on Terror had threatened our basic human rights obligations--or at least called attention to the fact that the United States does torture.

Nobody could accuse Mitt Romney of being a human rights activist, but he looked pretty sane in a field of candidates that included Gary Bauer and a guy who threatened to nuke Mecca.

But he sided with nativists in a November 2008 speech before the Las Vegas Chamber of Commerce, in which he made a mild but firm concession to the anti-Muslim bigotry that lingered after 9/11.

By 2008, Bush had to know it was a matter of time: the "enemy combatants" loophole, which allowed the Bush administration to deprive detainees of habeas corpus rights for almost six years, had been whittled down by two Supreme Court rulings and was on its last legs. The USSC finally put an end to the loophole in a 5-4 ruling establishing that habeas corpus must be protected.

The dissent, written by Chief Justice John Roberts, acknowledged the importance of habeas corpus but claimed that the Bush administration's new policies met the standard.

On his first day in office, President Obama officially banned torture and ordered the eventual closing of Guantanamo Bay. In subsequent months, he has also eliminated the "enemy combatant" designation.

What does this all mean? Well, Guantanamo is still open; torture was secret before, until it wasn't; the real work of getting rid of the "enemy combatant" horror was done by our judicial system, not the Obama administration; and his views on warrantless surveillance seem identical to those of Bush.

In other words, we're not out of the woods yet.