In the 1950s and '60s, Americans were experiencing a new kind of fear: Germany and Japan had been defeated, but they had been supplanted as enemies by an expansive Soviet Union (backed by the combined forces of several Eastern European allies), a newly installed communist dictatorship in China, and a militarily aggressive North Korea. Marxist ideology had gained a foothold in Africa, Asia and the Caribbean. Leftists argued that communism was the wave of the future, and conservatives feared they might be right; the Soviet Union, the most powerful of these new adversaries, had nuclear weapons. Americans stockpiled food, built fallout shelters in their backyards, and battled over whether it was better to be "dead than red" as the government pursued a foreign policy based on attempts to contain the threat. Some Americans were willing to settle for coexisting "spheres of influence," ceding to communist dictatorships’ control over much of the planet.
The "domino theory" — the belief that if country A fell to the communists, country B might fall, too, and then, ultimately, it would be our turn — led Americans into a series of wars, during which, in fact, many American servicemen did die. In the end, though, for most of us and for the nation as a whole, the choice seemingly posed by the communist threat proved a false one. A combination of American "soft power," an arms race that took maximum advantage of this country's vast industrial and economic advantages, and a strategy of single-theater military actions simultaneously maintained our freedoms and avoided nuclear holocaust. We had won and were neither red nor dead.
Since the attacks of September 11, the Bush administration and its allies have attempted to force Americans into another either/or decision: We are now told that our only choice is to die in terrorist attacks, or to surrender many of the freedoms that have defined what it means to be an American.
This new false choice not only poses a direct threat to our constitutionally protected liberties but has a potentially disastrous secondary effect. As the political commentator Fareed Zakaria has pointed out, America's initial commitment was not merely to the idea of democracy or self-government, but to a much more narrowly defined "liberal," or rights-protecting, democracy. It is a distinction that allowed people like Ronald Reagan to hold America forth as a beacon to the world, a "shining city on a hill" standing on the moral high ground. It was a founding commitment that justified, in the minds of many American policymakers, our right to intervene in world affairs.
Things have changed. I have been a lifelong conservative, a former member of the House Republican leadership, a founder of The Heritage Foundation, and the national chairman of The American Conservative Union, and I do not take pleasure in criticizing a Republican president in whose election campaign I once worked. But the fact is, Ronald Reagan's America is not George Bush's America. A nation that proclaims its love for freedom and democracy but is committed, in its fear, to torturing (either directly, by its own forces, or indirectly, by sending prisoners to prison camps in other countries); to maintaining secret prisons (secret even from American lawmakers); to holding captives indefinitely, without charges, and without the right to defend themselves; to stripping federal courts of their proper jurisdiction over administration activities; and to instituting widespread government surveillance of its own citizens in direct violation of federal law can no longer claim to be either exceptional among nations or a positive role model for the world. Whether we are seen as hypocrites or merely as unexceptional, our ability to serve as a positive influence on international affairs is severely damaged, and we are not made safer but increasingly endangered as a result.
America, unfortunately, has a tradition of overreaction to perceived threat, from the Alien and Sedition acts of John Adams’ presidency and the unauthorized Civil War suspension of habeas corpus to the World War II seizure and imprisonment of thousands of Americans of Japanese ancestry (including future members of Congress and the cabinet) and, since 2001, a series of Bush administration assaults on the inconveniences of constrained presidential power. But never before has this tendency toward hunkered-down fearfulness so damaged America in the world’s eyes.
This is not a minor point. What America does in the pursuit of its perceived self-interest may have ominous consequences. From Iran to Cuba to Nicaragua, years of American support for dictators fueled anti-U.S. campaigns and the eventual emergence of anti-U.S. governments. (Jeane Kirkpatrick attempted to draw a distinction between the "authoritarian governments" we supported and the "totalitarian governments" we opposed, but in the end the distinction proved meaningless; the oppressed seldom pause to consider the most appropriate label for their oppressors.)
Today, secret imprisonment, torture and the arrogant mismanagement of postwar Iraq (let's call it the Bremer effect) serve as recruiting tools for al-Qaeda and other anti-U.S. terrorists. America is not its own worst enemy, but under the Bush administration it has become an unwitting asset to those who truly do wish to kill us.
Administration spokesmen argue that this dilemma, troublesome as it may be, is unavoidable. Stripping airline passengers of nail clippers and curtailing the jurisdiction of the federal courts are both, we are told, necessary steps in the "war on terror." What is needed, the administration has argued, is a progressive new concentration of state power using the technologies of the modern age to root out real and potential threats.
The models for this "new" stratagem for state protection, however, are not in the constitutional convention but in the English king against whom we initially rebelled and the scenarios woven by George Orwell, who did not consider them progressive at all. In fact, the arrogance of state dominion is perhaps the oldest form of governance known to man, dating back to the caves of prehistory. To the Bush White House, however, concentrated authority, backed by all the powers of the nation-state, has seemed merely a sensible utilization of available tools. Potential dangers to constitutional liberty, and to America’s international credibility, have been brushed aside.
Even the most ardent defender of American freedoms must ultimately concede that a nation is allowed to act as necessary to protect the lives of its citizens. Here's the ultimate question, then: Have the strategists of the Bush presidency correctly understood the threat and the best means of defusing it? Does our security depend on a setting aside of constitutional liberties and acquiescence in the emergence of a new hunkered-down national-security state?
The Bush formulation holds that New Hampshire’s state motto — "live free or die" — is backward, that freedom imperils us all. To determine whether the current administration has it right, we must consider what is required, first, to provide as much security as can reasonably be hoped for. Then we must see if we can guarantee the American liberties that we proclaim around the world at the same time that we provide security.
Ensuring a defense against the murderous intentions of a non-state enemy requires three components: information about the enemy's activities and intentions, the means to prevent the successful implementation of an attack on the United States or its citizens, and the ability to eliminate (or at least greatly diminish) the capacity of terrorists to do harm in the future.
There are, of course, many subsets to each of these primary responsibilities. Preventing attacks requires that we protect borders against the infiltration of either terrorists or their weapons, whether by land, sea or air. To get information, we must conduct successful interrogations and eavesdrop on the enemy's communications. Making terrorists harmless — or less harmful — may mean placing them in prison and sometimes (to limit transmission of potentially dangerous information) in solitary confinement.
Some civil libertarians fail to appreciate it, but these responses — from imprisonment to wiretapping to passenger and cargo screening — are necessary if the United States is to not be complicit in its own destruction. Who will argue that the United States should refrain from attempting to keep terrorists where they cannot harm us? Who will argue that we should not attempt to elicit information that may save American lives?
The issue, then, is not what to do but how to do it.
And this is where the false choice comes in. We didn't need to be dead or red to win the Cold War, and we don't need to violate our own Constitution to render terrorists harmless or get usable information about their plans. In fact, violating our central commitments to human and civil rights may make us less rather than more secure, even in a strictly utilitarian analysis.
Nothing has more undermined America’s standing in the world than its subjection of terror suspects — or, as the administration has termed them, "unlawful enemy combatants" — to procedures this country has vigorously condemned for generations. As American lawmakers and administration officials debate whether "waterboarding" counts as torture, they ignore the fact that this country has believed it to be torture when practiced by other nations. And when prisoners are held without charges, and indefinitely, the more erudite of international observers recognize the practice of denying trial by jury as a specific grievance once used to justify this country’s declaration of independence from a tyrannical Britain. The same observers know the right of habeas corpus has been considered so fundamental that the Constitution specifically declares that it may not be suspended, except in cases of invasion or rebellion.
America has a stake in getting accurate information about enemy plans and capabilities, and non-state terrorists have proven themselves formidable enemies. But interrogation experts have long considered information obtained by coercion unreliable because suspects tend to say whatever it takes — true or false — to make the coercion stop. Setting aside any moral compunction about utilizing interrogation techniques we have long denounced as immoral, we now face the added danger of sending American operatives on wild goose chases, fed "information" gathered from terrified prisoners who will blurt out anything interrogators want to hear.
In ordinary domestic criminal law, there is a pragmatic argument for the refusal to use coercive questioning. If the wrong person confesses to a crime and is punished for it, the actual perpetrator of the crime remains free to act again. Likewise, our national security depends on knowing correctly where the threat lies. By utilizing torture, we forfeit international credibility and gain nothing.
The same argument applies to the refusal to grant habeas corpus protections to terror suspects. While it's unclear whether the Constitution grants all "persons," rather than just U.S. citizens, the right to a hearing before a neutral magistrate, nothing is more central to the idea of modern civilization than a prohibition against governments seizing persons and tossing them into prison indefinitely.
The only rational argument against allowing terror suspects the opportunity to know the charges against them, and to dispute those charges before an impartial judge, is the fear that the judicial process will result in the disclosure of information damaging to national security interests. But surely the president of the United States is not the only person in America who can be trusted to keep a secret. Hearings, or trials, can be held in closed chambers, with judges and the detainees' government-appointed attorneys sworn to confidentiality. This, of course, will not meet the standards of everyday American jurisprudence, but terrorism is not a routine crime, and such a process ensures that persons seized by the government will have the ability to know what they've been accused of and have an opportunity to defend themselves. Failure to provide even this minimal degree of justice undermines U.S. claims to advocate the "rule of law" in pressing its reform agenda on other nations.
No element of the war on terror has stirred more controversy in the United States than the Bush administration's use of various forms of surveillance aimed at American citizens. Many civil libertarians have zealously protested these infringements on privacy, but protecting liberty does not mean the government should surrender all opportunity to detect terrorist plots before they ripen. Government eavesdropping has played a role in routine law enforcement procedure for years and proven effective in campaigns against organized crime. And the Congress — the branch of government with the constitutional authority to write the laws — has specifically authorized wiretapping of suspected terrorists.
Until recently, however, the law required approval of a special federal court before government could institute surveillance. To give the government the ability to act expeditiously, the law even permitted post-surveillance approval. Simply ensuring that all government surveillance of communication — including communication with persons outside the U.S. — is subject to judicial approval would go a long way toward showing the world that we believe what we profess when we talk about citizen rights.
Likewise, securing our borders and creating impediments sufficient to deter or impede terrorist attacks require no substantial infringement on the rights of persons either in the United States or elsewhere. In his book Open Target: Where America Is Vulnerable to Attack, Clark Ervin, the former inspector general of the Department of Homeland Security, detailed not only vulnerabilities (including insufficient monitoring of cargo entering American seaports) but sloppy management of agencies charged with responsibility for protecting America’s territorial integrity. Improving the quality of airport screening, tightening control over America's land borders, and eliminating managerial incompetence will all make the nation more secure, without signaling the rest of the world that we have become cavalier in regard to the liberties we talk so much about.
At the time of America's founding, old-world monarchs exercised immense power; from Paris to St. Petersburg, leaders reigned, and their subjects obeyed or paid a stiff price.
In America, the system was designed to be different. In place of subjects ruled by kings, the Constitution created citizens who ruled themselves. The prime ingredients of the difference in governmental form were the vesting of primary power in the people’s elected representatives, significant constraints on executive power, and the establishment of an independent judiciary.
If America is to successfully defend itself against the murderous designs of its enemies and continue to champion the rights of individual human beings — a championing that constitutes the irreducible "ism" of Americanism — the defense must rest on a recommitment to this founding approach.
In short, America can defend itself best by remaining American. Here is a simple five-step plan to restore American standing as a champion of human rights:
1) Guarantee the extension of humane treatment and judicial protection, including the right of habeas corpus, to anyone — of any nationality — seized under suspicion of complicity in terrorist plots and attacks against the United States.
2) Withhold support from regimes that oppress the inhabitants of their own countries. America has for too long embraced tyrants in the belief that their support was necessary for the protection of American national interests, almost always with disastrous long-term consequences.
3) Provide sufficient material assistance to counter the despair and anger that flow from an absence of hope. During the Cold War, American containment policies included a substantial commitment to assistance programs that provided direct financial and agricultural support to help targeted nations build their economies. Despair and hopelessness do not cause terrorism, but they may make its appeal more vibrant.
4) Adopt, so far as possible, policies and practices of non-intervention and multilateralism. The time has long since passed when America could impose its will on the world, but even if it could still do so, the resulting hostility toward the United States would reverberate unpleasantly for generations. America is part of a complex web of increasingly interdependent nations. Because economic globalization has impinged on the ability of any nation to act unilaterally and because of the stateless global nature of the current terrorist threat, we must nourish a web of allies whose languages and regional connections can be brought to bear to impede a common enemy. Sticking our nose into the business of other nations, turning friends into neutral observers who both fear and resent us, is a sure path toward isolation and disaster.
5) Re-establish proper lawmaking procedures. The president of the United States has a specific duty to command America’s military response to threat, but the laws under which a president must operate — decisions about whether to engage in war or unite with other nations by treaty or send money to arm allies — are decisions to be made not in the White House but by the people themselves, through their elected representatives. Presidents may not unilaterally declare the right to disobey properly enacted laws, whether through the use of signing statements or merely by ignoring congressional mandates. In addition, since Marbury v. Madison was decided in the early days of the Republic, there has been a national consensus that the courts have the authority to judge the constitutionality of government actions. Depriving the courts of jurisdiction to examine the procedures under which prisoners are held and interrogated strikes at the very heart of the "rule of law." We are not merely a democracy; we are a democracy of a certain kind. Whatever policies we adopt to ensure our security and survival will be respected if we live up to our own standards and require that those policies and the laws to implement them have been properly developed through the actions of the people’s representatives.
America was born in a rejection not just of an individual monarch, but of monarchy itself.
Not one of these undertakings requires America to be anything other than itself or to do anything other than live up to its own Constitution, its own longstanding traditions and its own core beliefs. George Kennan, the architect of America's Cold War containment strategy, argued that precisely such a commitment — to be true to ourselves — was the best way to ensure that we would ultimately prevail. We did not need to be either red or dead then, and we do not need to trample human rights, here or abroad, to wage war against the terrorist enemies of today.
Knowing friends and family members who witnessed firsthand the destruction of September 11 and knowing others who died in the earlier bombing of the Alfred Murrah Federal Building in Oklahoma City, part of the congressional district I once represented, I resist efforts to downplay the nature of the threat we face. The threat is real, and the consequences of a failure at deterrence would be enormous.
At the time of the nation's founding, however, there also was a real threat — not only to individual lives but to the very survival of the nation. Britain and France were fully capable, had they concentrated their resolve, of strangling America in its crib. Even in that dire circumstance, the nation’s founders wrote a Constitution that limited government's powers, decentralized federal authority, and spelled out very specific protections of citizen rights. That same approach can keep America secure today.
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