Iraq and Afghanistan

Today’s paper explains the methods by which a small faction in the Bush Administration was able after 9/11 to change military law in regard to the way in which persons were arrested, held in custody, and tried (actually not tried as it turned out in most cases) after 9/11. Rules of evidence were to be greatly modified and everything was to be done simply by the whim of the President no matter what the national or international law might be — so long as terrorists, a very hard category to define in the field, were said to be involved. This faction was so sure of its rectitude and so convinced that everyone else was a wimp that they excluded from their efforts the military lawyers (who before these events had been bringing military law and practice into conformity with civilian law and practice), the State Department who had the greatest number of experts on international law, and such supposed insiders as Colin Powell and Condoleezza Rice (both of whom were furious when they found out what was happening). The result has indirectly been the abuse of prisoners in Iraq, Afghanistan, and Guantanamo and, more directly, the inability of the government to try effectively those that it has imprisoned. The latter failure results from the fact that too many of the judges and bypassed military lawyers that have at some point to become part of the process are deeply opposed to what is going on.

I was recently asked what I thought of the threats to civil liberties that were inherent in aspects of the Patriot Act and the preemptory approach of the government to suspects. My reply that I was not happy, but that what I really worried about was what would happen if we had a succession of 9/11s, such as both Homeland Security and al-Qaida has assured us will occur. Then I would see a cowed American public willing to accept almost anything the government claimed was necessary, with the end result a fundamental and long-term loss of civil liberties.

A friend of mine, Patrick Gunkel, has pointed out that from a larger perspective the loss of 3000 lives on 9/11 is actually a rather small event. Over 40,000 people are killed in automobile accidents every year and 60,000 people die in New York City every year. Of course, the level of horror of 9/11 seems quite different, especially when the events are played up all around us by the media. But let us imagine a string of 9/11s, one every week for two months, occurring at scattered points around the country (although mostly in large cities). This is what we have been told might happen. But if it did, then how would we restrain those in government who would set aside our common rights to attack this danger? I am afraid that the majority of Americans would not be in a mood to restrain them.

This suggests that those who fear this outcome should come together as experts and civil libertarians to devise proposed changes in peacetime civil and military law that could and should be made for carefully delineated periods in the event of extreme emergency. If these changes were well publicized and decided on before the fact, then when such an emergency occurred, the rush to push aside liberties for safety might be controllable. One can hope that a new administration would make such a move to define before the event emergency law for crises of different intensities.