War on Terror and Civil Rights

Introduction

The war on terror has created considerable controversy in terms of the methods and lengths that have been undertaken to protect Americans from further terrorist activity. However, these methods have been found to encroach upon certain individual rights and freedoms that have been keystones of US democracy. This paper will discuss three issue areas where the conduct of the war on terror has impinged upon civil liberties. This discussion will also include the constitutional implications of such procedures and methods.

The three subject areas to be examined include torture, surveillance, and detention. The paper will be divided into six sections. The next section will present a brief overview of the topic of terrorism's effect on civil rights in the US. Then the following three sections will cover the three issue areas in more depth. The final section will be the summary and conclusion.

Overview

Terrorism has been shown to have a powerful effect among those who directly experience an attack. In addition to those physically harmed or killed there is the intense psychological trauma that can linger long after the attack itself. Although it should be noted that those geographically distant from an attack have been shown to experience more modest effects. Even for those nearby an attack, follow-up studies have shown some significant subsidence in its psychological effects over time (Hobfoll, Canetti-Nisim, & Johnson, 2006). Nevertheless, it's quite understandable that nations which experience terrorism take quite extreme measures to counteract future tragedies.

Counter-terrorism is the response by states to the problem of terrorism and is also known in the US as the War on Terror. It's notable that not all countries conduct counter-terror operations in precisely the same manner. For instance, in Japan regarding the growing Aum Shinrikyo threat, the official response was criticized as lacking a proper level of aggression (Pangi, 2002). In Russia, the response to Chechen terrorism was increased militarism and a military occupation of Chechen territories. Russian forces, in an attempt to liberate hostages held in a public school, helped precipitate the death of 700 civilians (Mukhina, 2005). These examples are only cited to establish that, when formulating counter-terror policies, the official response should not create even worse problems than the initial incident. Indeed, the US counter-terror response, during the Bush Administration, was to cast as wide a net as possible in accumulating data and suspects involved with potential terror operations. However, such policy was based more on what certain individuals might do at some indeterminate future time, than on any direct terrorist activity.

Torture and Civil Liberties

Torture is a particularly difficult subject in American jurisprudence. As Kreimer (2003) argues, torture was not a central feature of US law. However, official policy towards torture underwent a significant change following Sept. 11. In the wake of the most hideous terror event on US soil, senior US officials allowed that every and all methods would be available to collect evidence that could be useful to prevent future attacks. This meant that both physical abuse and the use of certain chemicals, would be employed if the necessity to use them arose. The Inspector General, a Department of Justice official, has also acknowledged that torture involving particular subjects has been used to obtain information (Kreimer, 2003). During the early months of the US initial response in Afghanistan and Iraq, there were already reports that individuals held captive were being treated with a high level of brutality.

Amidst these reports came denials from the Bush Administration that torture was being used as a means to extract intelligence. Indeed, Administration officials indicated that the US was a signatory of the international Convention Against Torture or CAT (Kreimer, 2003). Although, what was not clear, is that Bush Administration officials had distinguished torture from 'other types' of cruel punishment. In fact, the official definition of torture was an act the produces extremely high levels of long-term suffering and pain for reasons that are legally prohibited. Under that 'other types' rubric were law enforcement practices that allowed a much more reduced degree of official disregard and scrutiny. It's just this distinction that was used by senior administration officials to make allowances for physical beatings and torture as part of the process of interrogating terror suspects. Thus, under the official Bush Administration interpretation, the CAT treaty's prohibitions only apply to procedures that are in violation of the Fifth, Eighth, and Fourteenth Amendments of the US Constitution.

Any mental or physical stress that is used to provoke responses from uncooperative individuals, which doesn't fall under the official definition of torture above, is permissible. Any renouncements of such practices would occur only in terms of their violation of the above-named constitutional amendments (Kreimer, 2003). In the views of some torture advocates, it's also unclear whether the US Constitution expressly prohibits torture.

Indeed, Dershowitz, a legal scholar of some repute, has argued that torture is permissible under certain circumstances and as such would not be a violation of the Constitution. In this position, if the only means to prevent future massacres was to torture one or a small number of conspirators, then this is allowable (Dershowitz, 2002; Kreimer, 2003). It should be noted that torture is not considered any less revolting or repugnant to its advocates. For Dershowitz, if the information obtained is not to be used to prosecute criminals, then the Fifth Amendment on self-incrimination is not violated. In addition, the Eighth Amendment's restrictions involving 'cruel and unusual punishment' are not applicable in situations where violence is used to prevent further crimes. The nuanced difference is that the purposes of such data are for prevention and not for legal retribution for a crime that has already occurred.

Only two other constitutional restrictions may be raised in such cases. The first is the Fourth Amendment's curtailing of unlawful searches and seizures. The second is the due process clause (Kreimer, 2003). Dershowitz (2002) holds that reason and just cause are also applicable in torture cases. Thus, just as a police officer may administer a test to check for blood-alcohol level in a drunk driving case, so may government agents use chemicals to decompose the resolve of suspected conspirators. Also, in the case of due process, the use of such invasive methods are permissible because the requirement of cause is satisfied in the need to prevent future terror incidents.

This perspective on torture has some vehement critics. Kreimer's (2003) Eighth Amendment reading is that torture is clearly banned under the 'cruel and unusual punishment' phrase. The purpose of the Eighth Amendment was to pre-empt precisely the kind of torture that was engaged in by agents of the English monarchy during and after the Middle Ages. The Framers of the Constitution are reported to have considered torture a particularly revolting practice. It may be added, that inflicting physical pain to punish an individual is not considered a legal use of police power as decided in Hope v. Pelzer (2002). Conversely a number of Supreme Court decisions appear to uphold Dershowitz's (2002) argument that a distinction must be made between uses of torture for prevention versus punishment. The latter is constitutionally protected, but not the former.

An example of such a case, in terms of Fifth Amendment issues, is Chavez v. Martinez (2003). In this case a suspect was shot by police officers in the face and was in immediate need of medical attention. Yet he was interrogated for up to 45 minutes while experiencing excruciating pain. During the course of this interrogation, the suspect revealed self-incriminating information regarding a crime (Kreimer, 2003). The case was argued before the Supreme Court where no violation of the Fifth Amendment was found. The majority argument was that the confession was not to be used at a criminal trial and so does not violate the Fifth.

Surveillance and Civil Liberties

There are similar issues at play when considers the expanded use of surveillance. The argument that preventing a potential tragedy confers unusual powers on government officials is also used as justification in surveillance cases (Kreimer, 2003). The importance of obtaining useful information regarding terrorist conspiracies is indeed a crucial focus of US Intelligence. As Justice Souter remarked in the Hamdi v. Rumsfeld case (2004), during a national emergency the President isn't limited in any methods to provide protection and take decisive action, against potential threats. This means that legal restrictions can be overlooked, Congressional and judicial supervision can be ignored, and civil liberties can be invalidated.

This includes such civil liberties as a right to privacy, established with reference to the Fourth Amendment's 'houses, papers, and effects' clause. It should be noted that some legal scholars don't believe an explicit right to privacy exists in the US Constitution (Heffernan, 2002). The concept of privacy appears to have been formulated in relatively recent times. Thus, this concept was developed due to a number of cases that were used to define proper levels of police surveillance of suspects (Heffernan, 2002). It can be argued that the original intent, of the aforementioned clause, was to protect citizens from arbitrary use of police power. This power was routinely used to harass the political opponents of the English monarch during the 18th century.

Yet, as is the case with torture, the war on terror has significantly expanded the range of what was previously permissible. The National Security Agency (NSA) has instituted warrantless wiretapping and data mining systems in call centers. These programs have been implemented with the cooperation of the nation's major telecommunications firms (Michaels, 2008). The issue of warrants is a particularly troubling one, because decades of precedent have established that probable cause is needed. In addition, judicial oversight is also required before the civil liberties of an individual can be violated (Heffernan, 2002). This issue of probable cause relates to the existence of concrete evidence that a crime either has or is being committed.

The employment of such private sector firms as Western Union, Federal Express, and Verizon Communications, has allowed counter-terror operations to function outside the boundaries of the Constitution. Thus, subpoenas, court orders, and legislative and judicial supervision are not required of private sector entities (Michaels, 2008). This procedure not only raises questions about such civil liberties as privacy, but also about the authority of governmental institutions, the strength of the separation of powers doctrine, and the very purpose of law.

Courts do walk a fine line in privacy matters. There is the problem of restricting law enforcement’s surveillance prerogative and possibly allowing criminals to escape detection and arrest. Or allowing law enforcement too much freedom and dangerously restricting the rights of individual citizens (Heffernan, 2002). The consensus, in cases of this type, has been to support law enforcement’s request for more tools with which to carry out successful investigations and apprehensions with restrictions such as probable cause and warrants.

A related issue, in the encroachment on privacy rights, is the surfeit of video surveillance infrastructure in the wake of Sept. 11. The surveillance state has experienced a great expansion in the wake of the incidents in New York City and Washington D.C. It’s notable that many Americans are willing to give up some freedoms in exchange for greater security and safety. Accompanying this expansion has been some easing on the government’s limitation to use electronic surveillance to monitor citizens (Liptak, 2011). Where the expansion of the surveillance state has some benefit, in non-counter terrorism cases, has been in its use in identifying and tracking criminal suspects. Video now allows law enforcement to more efficiently follow such suspects across fairly large distances and periods of time. Thus, video provides greater capacity to observe the behavior of suspects across a range of situations.

Detention and Civil Liberties

The war on terror, presumes the US is conducting a war in the conventional sense. It may that this designation of counter-terrorism as war has made the suspension of civil liberties much more legally palatable. This allows for individuals suspected of terrorist affiliations to be held without formal charges for indefinite periods of time. This problem of indefinite detention also touches on the issue of habeas corpus. Habeas corpus, from a Latin term meaning 'you may have the body,' provides that any individual under arrest be brought before a judge in a court of law (Yackle, 1985). The purpose of this law is so that a court may formally review the evidence against a suspect. If the court deems this evidence to detain a suspect is weak, then arrangements can be made to release the prisoner. The essence of the law is to protect citizens from being illegally held by government authorities without any concrete justification for doing so.

The Supreme Court reviewed several cases related to the role of habeas corpus in counter-terrorist related detention during the period 2004-2009. These cases were the Hamdi (2004), Hamdan (2006), Rasul (2004), Padilla (2010), Munaf (2008), Boumediene (2008), and Ashcroft (2009; Resnick, 2010). The common thread connecting each of these cases was the objective of seeking restitution for maltreatment while in detention. In the first six indicated cases, the majority opinion of the Court found that terror suspects had the right to have their cases reviewed by Article III judges. These decisions were applicable to both US citizens living outside the country and to non-citizens residing within US jurisdictions (Resnick, 2010). Article III judges include all judicial officials established under the US Constitution's Article III ("Federal Judges"). This includes justices of the Supreme Court, and judges in the federal courts of appeals, district courts, and the US Court of International Trade.

A number of case opinions argued for restrictions to presidential power. In the Hamdan (2006) and Boumediene (2008) cases, a number of opinions argued for restrictions over legislative control over the Federal government's habeas corpus authority (Resnick, 2010). However, the final case differed from the others in the Court's non-unanimous opinion. In Ashcroft (2009), it was ruled that it would be difficult to obtain recompense for injuries occurring during detention due to liability and pleading rules. Thus, it appears that post-Sept. 11 detention laws have changed the traditionally held interpretation of the Constitution's prescriptions for the terms and conditions of imprisonment.

Perhaps the best way to explore this problem of post-Sept. 11 indefinite detention is by way of the infamous Guantanamo Bay site. Guantanamo is a US military base situated on the Cuban coast where a number of terror suspects have been held (Resnick, 2010). The base is notable for its location in the territory of a Cold War adversary and for the Bush Administration's contention that it existed outside the boundaries of US jurisdiction. This latter argument was most notably heard in the Rasul (2004) and Boumediene (2008) cases. The Court's majority opinion in those cases was not in agreement with the Administration's argument. The consensus ruled that any actions taking place at Guantanamo were under the jurisdiction of US constitutional and statutory law.

A crucial problem during much of Guantanamo's existence has been any solid information about just who is being held there or even how many detainees there are. Some unofficial estimates place the number of prisoners at the base at nearly 800 during an indeterminate point in the past (Resnick, 2010). Following the Supreme Court's decision in the Hamdi (2004) case, the Defense Department formed a special administrative procedural for the detainees and announced plans for the formation of military commissions. These proceedings were to be held at a repurposed building set up for the Guantanamo Joint Task Force (JTF).

The JTF building contains a deliberation chamber that could be considered a court. In this room, Combatant Status Review Tribunals (CSRTs) conducted procedures which categorized and assessed the situations of some of the detainees. The CSRTs were composed entirely of military service personnel (Resnick, 2010). The Defense Department could undertake a review of CSRT procedures by way of its Administrative Review Board (ARB). The individuals that comprise the membership of the ARB were also military personnel. The board members had the power to decide whether prisoners would continue to be locally detained, released, or transferred to another facility. These procedures were used to establish the guilt or innocence of detainees who may be labeled as 'enemy combatants' (Resnick, 2010). A fairly small number of detainees were set on track for hearings before the aforementioned military commissions.

With the inauguration of the Obama Administration, there were indications of a policy change from the Bush era policy of indefinite detention without habeas corpus. In January 2009, the newly elected president issued an executive order closing Guantanamo Bay within the year (Resnick, 2010). The prisoners were to be transferred to conventional prison sites in the mainland US. This move encountered significant opposition by interest groups and other politicians who feared the detainees were too dangerous to house on US soil. Indeed, in late 2009 Congress refused to provide the necessary funding, roughly $80 million, to facilitate closure and prisoner transfer of Guantanamo prisoners. Congress also enacted legislation that introduced new requirements on detainee transfers and forbid the use of federal dollars to transfer Guantanamo detainees onto the US mainland. Indeed, this legislation required that the president provide at least 45 days notice to Congress before any proposed transfer could take place. In addition, the President was required to include a classified report for each prisoner detailing any potential security risks to the US. The President was also required to include a plan to address any security risks presented by the transfer along with a legal justification.

This decision stands in contrast to the 2001 Congressional decision that granted the Bush Administration tremendous latitude in the use of military force. This 2001 decision initiated the use of preventive and indefinite detention without a court hearing (Resnick, 2010). Moreover, in the fall of 2009 Congress enacted the Military Commissions Act (MCA). This act replaced the old definition of 'unlawful enemy combatant' with a new one of ' unprivileged enemy belligerent.' It also formulated many new procedures for use by the military commissions. With this in mind, Obama announced that he would be unable to close Guantanamo based on the indicated deadline. However, the Sept. 11 suspects would be tried on the US mainland in the United States District Court for the Southern District of New York. The conspirators were to be transferred to the mainland by means of the new procedures outlined by Congress in the MCA.

Conclusion

In sum, this paper has presented some evidence that there has been a legal alteration in the view of civil liberties in the US since 9/11. It now appears that the war on terror has led to substantive changes in the way the US government views the viability of civil liberties usually taken for granted. Thus, civil liberties around such areas as privacy, indefinite detention and the use of torture have been reduced. This reduction has coincided with an expansion in executive and police freedom to violate civil liberties along as the purpose to doing so is to prevent future tragedies.

References

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