By Ryan Harding, Contributor
In the 1997 article "The Erosion of American National Interests" which appeared in Foreign Affairs, Samuel Huntington characterizes U.S. foreign policy as incoherent and as lacking a clear and defined direction—the result of American national interests suffering the "disintegrative effects of the end of the Cold War" as well as the terminal effects of multiculturalism. In this article, Huntington predicts that "[a]t some point in the future, the combination of security threat and moral challenge will require Americans once again to commit major resources to the defense of national interests." And it is at that time that America will "renew its national identity and...pursue national purposes for which Americans are willing to pledge their lives, their fortunes, and their national honor."
Today, Huntington's words have a great deal of resonance. 9/11 firmly drove a paradigmatic wedge between the post-9/11 age and the era of thinking which preceded it. Learning how to cope with the assumptions of a post-9/11 age has tested policy makers, as they have had to quickly meet the demands of this new age on the fly. And in the wake of the turmoil of 9/11 America redefined itself as well as its national interests as it looked to meet the challenges of this new age. Yet, while much American blood and treasure has been spent on the pursuit of a future without terrorism, fault lines are continuing to form around the issue of how counterterrorist efforts should proceed.
Recently, Daniel B. Prieto of the Council on Foreign Relations (CFR) published a working paper entitled "War About Terror: Civil Liberties and National Security After 9/11." Prieto's paper is part retrospective and part prescriptive, and was born from the ashes of the CFR's Independent Task Force on Civil Liberties and National Security which "sought to analyze the foreign policy dimensions of the civil liberties debate" but failed to come to a meaningful consensus. In his paper, Prieto, building on the existing architecture left by the Task Force, looks to provide the context in which decisions relating to counterterrorism policy were made. What is produced are a number of images depicting the various facets of those mechanisms put in place by the government to assure national security and the protection of American citizens from terrorist threats. Yet, behind these images sits the backdrop of civil liberties and values consistent with that of which America is symbolic: freedom from tyranny and oppression; democracy; and republicanism.
Much of the problem it seems is in forming a consensus about counterterrorism policy—what is driving the war about terror—relates to determining the correct balance, or finding equilibrium, between national security concerns and the fundamental protection of civil liberties. Repeatedly, however, Prieto argues that these two things—national security and the preservation of civil liberties—are coequal, and that one can be achieved without undermining the other. Nonetheless, to date, policy makers have tried to grasp the many challenges presented by transnational terrorism, and, according to Prieto, many of the solutions to the difficult challenges posed by transnational terrorism (legal or otherwise) have been ad hoc.
One thing that becomes clear as Prieto discusses the various policies and directives handed down by the Bush administration is that they are typified by their lack of sustainability on multiple different levels. From interrogation practices to the detention and legal standing of unlawful enemy combatants, and from domestic intelligence gathering practices and the circumvention of the Foreign Intelligence Surveillance Act of 1978 to preventative detentions, the Bush administration, as well as Congress, attempted to adapt to the situation with which they were faced through using and altering existing mechanisms or apparatuses to meet their needs. The problem with this approach, however, was that many of the existing mechanisms used to combat criminality were unsuited to fight transnational terrorism.
The imminence of the threat of terrorism, and the need to act preventatively, presented a problem for the existing legal framework which lacked the means to combat, in real-time, the threat of terrorism. For instance, Prieto describes "the legal tools" used for U.S. domestic preventative detentions directly after 9/11 as "an ad hoc mix of criminal statutes and immigration law," which were utilized in the "absence of a clear and comprehensive policy and legal regime." This absence "played a significant role in many of the errors and abuses that occurred" as those who were detained out of terrorist concerns bore little fruit in terms of credible intelligence and valuable resources were wasted. And while section 412 of the PATRIOT Act presents an alternative to the ad hoc measures utilized in the wake of 9/11 for the purpose of domestic preventative detention, that section has been widely disputed because it "allows indefinite detention on a technicality" and "it fails to provide adequate oversight from an authority outside the executive branch." Prieto suggests that section 412 can be salvaged, but only if it is revised to include adequate civil liberty protections.
Beyond the legal level, Prieto makes the point that many policies and practices were, or are, unsustainable because of their stigmatizing effect with regard to America's image abroad. These policies and practices, ranging from extraordinary rendition to the treatment of detainees at Guantánamo Bay and now abandoned CIA interrogation practices—including water boarding, altered America's standing in the world, as the international community grew skeptical of America's commitment to human rights and the humane treatment of detainees. And even though many of these policies or practices have been discarded, regaining its position as a once revered nation will take time. The U.S. will have to demonstrate its recommitment to the ideals and values which form the foundations on which America stands.
What can be drawn from Prieto's rather lengthy analysis is that ambiguous policy and/or a lack of transparency on the part of the executive were largely to blame for the abuses and overreaches of power which occurred post-9/11. Much of the policy that was enacted by the executive was produced in-house and was enacted without the consultation of Congress. Contrastingly however, where the executive did overreach, or enacted policy inconsistent with the law (either domestic or international), it, in many cases, righted those wrongs and/or properly consulted Congress (at times begrudgingly) to ensure the legality of its policy. Much of the knee-jerk policy that was created in the wake of 9/11 is beginning to be overturned, revised, or replaced (either by the executive and Congress, or the courts) with more methodical policy instilled with a commitment to civil liberties. And while Prieto is firm in his belief that counterterrorism efforts need not occur at the expense of civil liberties, what has become clear is that how civil liberties are defined has changed.
This change can be blamed on the assumptions on which the post-9/11 paradigm is based. While the idea that civil liberties can be maintained as they were pre-9/11 is novel, the reality is that the mentality which the post-9/11 age—the age of globalization—demands that civil liberties be eroded somewhat if we are to effectively combat terrorism. Policy has, and can be, made which is equally concerned for national security and civil liberties; but the meaning of national security, and what is needed to ensure the safety of our nation and its citizenry now includes domestic intelligence gathering, domestic preventative detention, the ability for U.S. citizens to be classified as unlawful enemy combatants, and so on.
For instance, even Prieto notes that there are exceptions to the rule. When he writes that even though "[t]he United States should reaffirm emphatically and unequivocally its commitment to abide by the Geneva Conventions regarding detainee treatment and interrogation and to not engage CIDT [cruel, inhuman, or degrading treatment] or torture," he later implies the caveat that these commitments have their exceptions, saying, "the president should be required to inform and engage congressional leadership when altering CIA techniques to allow more coercive measures." While this would ensure oversight with regard to the president's decision to "allow more coercive measures", what this caveat represents is the conditionality of international obligations and human rights. And while exceptions must be made, this line of thinking undermines the absoluteness and universality of those ideals and values on which America rests, and makes them but one of many variables in a cold utilitarian formula.
