Introduction
They consider us to be at ‘war’, even if the war is not a declared one with specific rules and a recognized enemy. pg. 103, In Goold, B., Lazarus, L., [eds.]. 2007)
After the 9/11 bombings of the World Trade Center, the US government under President Bush executed and implemented a series of actions that catapulted the country to a period of war. In November 2001, President Bush pushed into law the USA Patriot Act. Among the things stipulated in the law is the “detainment of non-citizens for up to seven days before being charged with a crime; expanded wiretapping, which extends to cell phones and tracking people with multiple numbers; and unprecedented information sharing between the CIA and FBI” (PBS Online Newshour: 2001).
In addition, the Justice Department has authorized the monitoring of conversations between attorneys and clients held in federal prison on suspicion of terrorist activity. The government has also announced plans to interview some 5,000 young Middle Eastern men who entered the country on temporary visas after January 2000.
Undoubtedly, the protection of America has come at a high price in the name of “security” and “human rights”. Seven years after, America is still at war. Protection is still questionable. Human rights advocate contesting the government’s tactics of surveillance and inhumane treatment of detainees. Intellectuals debate over actions of the administration whether “right” or wrong”. US soldiers are deployed and are still being deployed in Afghanistan and Iraq to fight and rebuild.
In light of this confusion, inaccuracy, power, and struggle, this paper presents arguments that would confer how constitutional rights and civil liberties are limited in the wage against the war on terror. At the same time show the ambiguities surrounding administration acts compared to in reality.
Ambiguous Democracy
A day after the 9/11 attacks, with less than 3,000 people injured and millions of properties turned into rubbles, President George W. Bush, said on the 12th, “What happened yesterday were more than acts of terror. They were acts of war.”
This statement propelled the Executive branch of the government to usher in new directives to tighten the security of the country and to hunt the culprits behind the attacks. President Bush, through numerous press conferences, stated repeatedly that he will “smoke them out” of their holes and bring them to justice. He guaranteed and promised Americans that he will do everything in his power to “prevent any further attacks” on the American people. America, he stated, is at war thereby making him the Commander in Chief wherein he has unlimited executive powers to make decisions in the name of protection and security.
Constitutionally, the executive branch can not just wage war globally or change the status of his power as a president without the authorization of the Congressional branch or to conduct actions within the United States without the required legal procedures. But then again, the Office of Legal Counsel, under the Justice Department, granted absolute power to the president in the argument that the country is in a time of terror.
Six weeks after the attacks, President Bush delivered his promise of “security” in the form of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. This law allows the Executive Branch to research the following within the United States even if you haven’t committed a crime:
- Medical and financial records;
- Computer and telephone conversation;
- Books you’re taking out from the library;
The act allows the government to have “roving” surveillance and interception of communications electronically.
In this regard, the academe, advocates, and ordinary citizen clamored for violation of human rights particularly on “privacy” matters. For the sake of national security, it would seem appropriate to limit some rights. However, the question is to what extent should private citizens allow for their rights to be limited? Is it a justifiable cause that people should just give up their right to the government to be safe? Logically, how can the government help protect the people when they are vulnerable and have no rights to fight for?
Given the authority of the Executive branch to search and intercept communications, the government has given enough reason to doubt if the person (receiving or sending a message containing “threats”, “attacks”, “terrorism”, “human rights”, scrutiny against the government”, “Bin Laden”, “Al Qaeda”, and others) is a suspected terrorist. Not only was the Executive branch authorized to search and intercept, but they were also authorized not to divulge how and what actual information did they extract. The government can identify suspected enemies but they are not required to explain thoroughly the process of how the suspect was accused. President Bush once said,
“It’s important for us not to reveal how we collect information. That’s what the enemy wants and we’re fighting an enemy.”
Analysts and intellectuals argue that this one-sided debilitation of human rights is not fair to the people. For America to secure its homeland, citizens should be cautious when expressing their opinions and views because whatever information intelligence agencies gathered under the order of the president, can be used against anyone, whether an alleged threat to the national security or personal.
Interception of telephone calls and messages is just one aspect of authority the government can exercise. And with that instance alone, the freedom of expression is tainted to its very foundation. How much more personal freedoms would be lessened after collecting financial and medical records and even reviewing the borrowed books from the library? Personal information of American citizens is open access to the government and the government justifies this because we are in a state of war. In addition, the Bush administration openly admits to the public that methods of gathering intelligence are strictly “classified”.
This reminds me of a classic case of “what’s yours is mine, what’s mine is mine” and people are on a “need to know” basis. Is it fair that the government intrudes on ordinary people’s lives and then not informs them of what they are to be protected from? If eavesdropping on people’s communications can bring them closer to knowing the enemies then why not tell the people. In essence, the Bush administration can strip people of their rights, hide methods of gathering intelligence from the people, and convince the very same people that they do this for their protection and security.
Another aspect of the Patriot Act is the suspension of habeas corpus. The suspension of the Right of the Writ of Habeas Corpus legitimates any arrests on suspected terrorists, enemies, or people harboring the terrorist. Without the given right, the arrested suspect is more vulnerable to interrogations and punishment to extract more “substantial” information for future attacks, instead of exercising its right to prove his innocence or guilt. There are several reports about this which will be discussed in the second part of this paper.
Any arrest made to someone should be protected by law even if the person is indeed a terrorist and proven guilty for committing an act but without the writ of habeas corpus, arrests can be made anytime on the grounds of suspicion. It would be degradingly unlawful at the end of the alleged terrorist is innocent.
It was said that the Bush administration tried to stop congress to conduct its own 9/11 investigation. Congress pursued it because it was its duty. When congress finished its investigation, the executive branch censored 28 pages of the report, especially those pages stipulating the involvement of the Saudis in the attack. When Congress did not authorize the request of the executive branch to enhance its power to wage war and protect the nation, they asked the judicial branch, and through the Office of Legal Counsel, it was granted. The new memorandum said:
Memorandum Opinion for the Deputy Counsel to the President
In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
Yoo, J. (Sept. 25, 2001).
If after September 11, the president said that it was an act of war, and with the new memorandum saying that the president has “constitutional” enhanced power as the Commander in Chief and that no statues can limit that power, what is the “constitutional” authority left for both the Congress and Judicial Branches? Ironically, the enhanced power given to the president is said to be constitutional, meanwhile, the rights of the congress to exercise its power to countercheck the executive is also constitutional. When congress summoned Vice President Cheney to the congress to testify against massive surveillance, Cheney argued that he was protected with the enhanced executive power.
From the point of view of the executive, the congress was not acting based on the newly enhanced power, while the Congress claimed that the executive is unlawfully acting excessively by arguing to be in the state of war and need of national security.
Recently, President Bush calls Congress to act immediately on another bill that would “protect” America. The Protect America Act of 2007 “amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to state that nothing under its definition of “electronic surveillance” shall be construed to encompass surveillance directed at a person reasonably believed to be located outside the United States.” This bill strengthens and justifies the method of gathering electronic surveillance to people both in and out of the United States who are in suspicion of terrorist activities.
In a recent news bulletin, President Bush commended the bi-partisan House of Senate in reaching an agreement to re-authorize the Protect America of 2007 Bill. However, the president was not missive to note that the House of Congress failed to act. Critics and analysts say that even if this bill is not re-authorized, the president will secretly use his “enhanced” powers to pass this bill. The President, on the other hand, was quick to respond that by not passing the bill, current intelligence activities by governing agencies will be stripped of its power to survey and gather information for the protection and security of America.
In this regard, is it constitutional for the Commander in Chief to ignore the authority of the congress and to use the legal power of the judiciary when the actual war is in another country? In this said time of war that the president has enhanced powers, is it constitutionally unlawful for congress to deny the request of the executive? What are the duties and responsibilities of Congress and Judiciary to the Commander in Chief in times of “war”? Why are these laws enacted upon the American people who are not actually and physically at war? What powers does the constitution have to limit and countercheck the President’s actions and judgments as to the head of a democratic country?
Extraordinary Rendition
Last October 2007, a film by Gavin Hood entitled “Rendition” was shown and afterward received mixed and rave reviews from the public. The film sets when an American died in a terrorist attack in Africa. An investigation leads to an Egyptian who has been living in America for years and is married to an American and has Egyptian-American kids. He is apprehended by the CIA on his way home to the US and is secretly transported to Kenya where he is interrogated and tortured. His wife solicits the help of a friend and finds out that her husband is held by the government but the government denies anything about the case.
It seems very fictional for an ordinary person to see or hear something like this. However, for people who are non-US citizens, the stories unfolded on Extraordinary Renditions, are simply a reality and a nightmare they have to live with for the rest of their lives.
In a show by PBS Frontline World entitled Extraordinary Renditions, renditions began in early 1883 when a man was picked up by the Pinkerton Detective Agency and was rendered in Chicago and faced trial for larceny. Renditions then were renditions to face court trials. Since then, renditions have had several changes.
After the 9/11 attacks, to protect citizens from further terrorist attacks, the Bush administration allowed government agencies to “wiretap” people who are suspicious of conducting terrorist activities or harboring suspected terrorists. Once government agencies have eavesdropped and gathered information on certain individuals, they would pick them up covertly and transfer them to countries that are known to use coercive methods for interrogation and with whom the US has close ties. Normally in rendition procedures, the person rendered goes back to his country of origin or to the country where he is wanted to face trial.
However, in recent cases of extraordinary renditions secretly conducted by the Central Intelligence Agency (CIA), people rendered are sent to countries like Egypt, Morocco, Ethiopia, and Kenya who are predisposed to use coercive methods of interrogation—torture in other words. Moreover, the detainees are kept for long periods incommunicado and without access to a lawyer or even to hear the crimes they have allegedly conducted.
Similar to the film released last 2007 there have been alleged cases of renditions. The following cases are taken from the documentary on Extraordinary Rendition shown by PBS Frontline World.
- Muhammad al-Zery and Ahmed Agiza, two Egyptians seeking asylum in Sweden, are handed over to a hooded U.S. team at Stockholm’s Bromma Airport and rendered to Egypt. Agiza, in particular, has fallen under suspicion because of his alleged ties to militants implicated in the assassination of former Egyptian President Anwar Sadat. The Swedish government turns down his request for asylum on national security grounds, and on the same day, he is arrested and flown to Cairo. Both men rendered from Sweden later allege being tortured at the hands of Egyptian intelligence officers. After two years in a Cairo prison, al-Zery is released. Agiza is convicted of terrorism charges in Egypt’s Supreme Military Court and sentenced to 25 years, later reduced to 15.
- Binyam Mohamed, an Ethiopian allegedly working with José Padilla, the so-called “dirty bomber” who was later arrested in Chicago, is taken into custody at Karachi Airport while attempting to leave the country on a false passport. The United States accuses Mohamed, whose home is in London, England, of receiving orders from 9/11 mastermind Khalid Sheikh Mohammed to carry out an attack with Padilla in the United States. After his arrest, Mohamed is rendered to Morocco. He recounts being brutally tortured by his Moroccan guards and interrogators, including being cut with razor blades, during the 18 months he was held there. From Morocco, he is taken to the CIA’s secret “dark prison” in Afghanistan and then on to Guantanamo. He admits he did receive weapons training in Afghanistan but claims that it was to fight in Chechnya. And he denies knowing Padilla or plotting any attack.
- Canadian citizen Maher Arar is detained by U.S. officials at New York’s JFK Airport and interrogated about alleged links to al Qaeda. The Syrian-born immigrant is held for seven days and then deported to Syria, where he spends 10 months at the notorious Palestine Branch Prison in Damascus. A year after his arrest, he is finally freed and sent home to Canada. Maher Arar is innocent.
- Khalid Sheikh Mohammed is captured in Pakistan, the confessed mastermind of the 9/11 attacks. Mohammed is held for 3 ½ years by the CIA in an undisclosed location (thought to be Poland) before eventually being transferred to Guantanamo Bay. Some U.S. intelligence analysts question the legitimacy of some of his confessions and the number of high-profile acts of terror he claims to have planned or carried out. According to a recent New Yorker report, “Colonel Dwight Sullivan, the top defense lawyer at the Pentagon’s Office of Military Commissions, which is expected eventually to try Mohammed for war crimes, called his serial confessions ‘a textbook example of why we shouldn’t allow coercive methods.’”
- Khaled el-Masri, a German national of Lebanese origin, is struggling to find work as a car salesman in his hometown of Ulm, Germany. He would later report that his marriage was also in trouble. In December 2003, he buys a bus ticket to Macedonia for a brief vacation. He is held at the border crossing between Serbia and Macedonia and accused of being a terrorist, even though throughout his ordeal no one makes any specific accusation. He is held for three weeks in a hotel room in Skopje, where he says he was interrogated and beaten. After this, he is drugged and loaded onto a CIA Boeing 737 bound for Kabul, Afghanistan. He spends four months in solitary confinement at the CIA-run “Salt Pit” prison. In May 2004, CIA director George Tenet orders his release. The CIA refuses to make a public comment, but sources confirm that it was a case of mistaken identity: They had nabbed the wrong man.
These cases of extraordinary renditions are exactly that – extraordinary.
This calls to question the rights of these people who are either ordinary citizens accused mistakenly or combatants. Since the US Patriot Act, there have been thousands of detainees rendered in Guantanamo, Egypt, Ethiopia, and other countries for interrogation and torture. Some have died, some are still detained, some are innocent, and some are still currently being tortured for intelligence.
Under the Geneva Conventions Article Three, it states the rights of combatants wherein under any circumstances, all shall “be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”. All acts of “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” are strictly prohibited at any place. At the same time, combatants have the right if wounded to be cared for by an impartial humanitarian body such as the International Red Cross.
Given the rights stated, are the said rights exercised or made aware of to the detainees of extraordinary renditions? Probably not. Combatants, alleged terrorists, Muslims, Iraqis, they are also human beings. They are constitutionally provided certain rights under the Geneva Conventions and international law. However, these cases of extraordinary renditions secretly conducted by the CIA to “fish out” objective intelligence are a blatant manipulation and disregard for their rights as human beings. Some cases of renditions are simply mistaken identity. Most of the time, the detainees have no real intelligence to give.
Half of the time, detainees make up stories to stop interrogators from torturing them, while others are killed and covered up as suicides. To quote Douglas Freeman (played by Jake Gyllenhaal), CIA intelligence operative from the movie Rendition: In all the years you’ve been doing this, how often can you say that we’ve produced truly legitimate intelligence? Once? Twice? Ten times? Give me a statistic; give me a number. Give me a pie chart, I love pie charts. Anything, anything that outweighs the fact that if you torture one person you create ten, a hundred, a thousand new enemies.
The motive of the President to “smoke out” terrorists from their holes and to gather intelligence are not the one in scrutiny but the methods and tactics used to achieve this objective. In a time of war, the president has exercised much power and authority to “prevent any further attacks” on America. At the cost of gathering objective and legitimate intelligence, interrogators use coercive techniques to “soften up” detainees. Understandably, times of war are difficult times, and military personnel, soldiers, politicians, judges, et al. are pressured by the fact that they have to produce intelligence to “protect America”.
But the questions remain, at what cost and to what extent? Is it right to torture or inhumanely treat other people just to get information? Is America producing quality intelligence information that helps in the cause of counterterrorism? The perspectives are widely varied. Some like Michael Scheuer, former head of CIA’s Bin Laden Unit, say that this “is the single most effective counterterrorism operation ever produced…and has kept Americans safer”. Others, however, like Massachusetts Congressman Bill Delahunt (D), say that “renditions not only appear to violate our obligations under the UN Convention against Torture and other international treaties, but they have undermined our very commitment to fundamental American values.”
Does the End Justify the Mean?
“The claim is not the preserve of only neo-conservative US politicians, such as Vice President Dick Cheney, who argue that ’emergency is the “new normalcy”‘. Supposedly left-wing European leaders also argue that the “rules of the game have changed”. Similarly, the idea that we are facing the ‘normalization of emergency conditions’ and the ‘age of terror’ calls for unprecedented measures is not taken increasingly seriously within the academy across an ever-extending range of the political spectrum.” [Goold and Lazarus (eds.) p. 3].
At present, American soldiers are still in Iraq and Afghanistan addressing the call of the Commander in Chief to fight the “on going war.” On the battlefield, American soldiers, insurgents, and civilians of all ages have died for the cause of “preventing terror.” Furthermore, millions of dollars have been spent on weapons of mass destruction and millions of dollars worth of properties have been destroyed. The more death and damages the war creates the more hatred it would incur in the issues of cultural differences and religious beliefs. It would be detrimental to conclude that the act of suicide bombings and terrorist acts is very common to the nationality of the people that had been arrested, killed, and marginalized.
While the American soldiers are at the forefront of the battlefield, they are becoming the initial target of counterattacks and hatred. Although armed forces are trained to defend and kill, the very purpose of killing, in this case, is so ambiguous to explain, since they are asked to dismantle insurgents of which they are not even aware. Hence, the psychological aspect and principles of the soldiers could be affected due to the situation and to the influence of the environment. If mistaken identity happens on renditions, the mistaken killing of innocent civilians is more likely to occur on the battlefield. The increasing death toll of both American soldiers and civilians is an utter display of neglect to uphold the social contract, right to life, democracy, and, in a way, an act of terrorism.
The fundamental contradiction thesis is a pro-human rights argument: in essence, terrorists have forsaken the democratic path and are by their methods attacking democratic values, constitutionalism, and human; and therefore if governments respond to such attacks by abandoning constitutionalism and human rights protections, they are behaving in the same as the terrorists and undermining the same values. (Ashworth, A, pg. 206, In Goold, B., Lazarus, L., [eds.]. 2007)”
The value of the US Dollar is depreciating every day in the global market at the same time the US’s political arena is a shambles. American citizens are regularly reminded that they have to be protected from future terrorist attacks, which is unlikely to happen due to the profiling measures formed against the so-called “enemy”. The Americans with their limited rights are the direct victims of the weakening economy and the continuing debate on the role of the government in times of terror. Hence, if Americans have restricted rights, are suffering from the economic crisis, political ambiguities, and psychological threats what is there for the people to benefit from? Or what is there for America to sow by ripping war and death to other countries?
The United States is a democratic country bound to uphold the law of the United Nations to maintain social contract, peace, unity, freedom, and justice among other countries. Claiming to be at war and bypassing the norms and principles of the UN and organizations advocating human rights is inexcusable, especially, if it’s for retaliation. If America is entitled to disregard rules agreed by several countries, then other countries should also be excused to rules and should not be responsible for loss and damages they would incur if they are at war as well. Up to what point should we put an end to this chaos? And up to what degree this chaos is justifiable? Finally, who has the authority to stop this chaos?
News, updates, issues, pictures, and videos about this ongoing war, terror, and politics are rampantly available online. The growth of information technology is bringing images of brutal human behaviors and anomalies in the convenience of home. Unfortunately, the younger generations are susceptible to acquire the values of this phenomenon as an ordinary act of dealing with other nations or people. Or worst, they might consider as a reasonable act against human beings. Psychologically, spiritually and socially, war is detrimental to the formulation of judgment and honing of principles of the youth either Americans, Asians, Middle Eastern, Africans, or others.
From a worldwide perspective, America is now seen as a notorious and unjust democratic country that retaliated on the basis of the 9/11 attacks. Post 9/11 created varying degrees of ideologies from different countries and nationalities concerning the notion of liberty and justice. The core of American values and western culture is rocked by this phenomenon. What the Bush administration created with their actions and policies is not a stable and “protected” environment. More so, Americans learned to distrust the president himself.
The situation at hand is something that future learners globally will be remembered. I as a learner have struggled to grasp the different perspectives on the war on terror. There have been and are many admirable points of both sides of the coin but what I can take from this is not to choose sides but to take everything and create my idea. For me, it is a judgment call as a concerned American citizen, as an individual, and as a human being that there are “no winners in war…only victims.” When this issue is over, when this moment is remembered, hopefully people whether Americans of non-Americans, will learn the lessons to avoid deaths and chaos instead of justifying the destructions it caused.
References
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