Sermon: Civil Liberties in an Age of Terror

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Civil Liberties in an Age of Terror

By Charles Rush

October 21, 2007

[ Audio (mp3, 10Mb) ]

e two salient contributions that Christianity has made to Western social thought are contained in our scriptures today. They are the dialectical antinomies that we are 'Children of Light' and 'Children of Darkness'. We are both redeemed and fallen, capable of self-sacrificial compassionate love and a calculated unjust will- to- power.

The insight is profound because it places the seat of our moral and spiritual nexus at the center of the Will. As St. Augustine observed, "I have become a problem unto myself". Evil is not altogether outside of us, influencing us beyond our capacity to control it. At some point, in a moment of completely honest reflection, we recognize it is inherently our own. As Flip Wilson once put it, 'The Devil made me do it the first time; after that I did it on my own.'

This negative insight that we are all 'Children of Darkness' had enormous implications socially as well. If evil is located at the center of our will, then power concentrated in the hands of a few- worse- power concentrated in the hands of a single Monarch or Leader, is inherently unstable, as each and every one of us is tempted to use unrestrained power for unjust self-beneficial ends at the expense of the many. So the notion of a 'balance of power' entered the lexicon of political thinking to put an end to the long, long historical example of tyranny and Monarchical injustice that defined political history from Xerxes to Nero to King George to Chairman Mao up to the myriad of small suzerains like Robert Mugabe that still run their countries like the Mafia. The Christian insight that we need to restrain the worst of the evil in us by creating a political system that distributes power in a balance, has been enormously important.

Yet, we are also 'Children of light'. It is also true that there is an inherent dignity and ultimate worth to each and every person. We are created in the 'image of God'. This impulse so motivated John Locke and Rousseau, (and through them Hamilton, Jefferson, and Franklin) that we sought to establish a form of government that realized the fuller expression of human potential that democracy, the rule of law, and a society based on human rights, can develop. It is for freedom that we were created. And it was the quest for freedom which sent our Founding Fathers back to the libraries of Rome to literally review each and every constitution they could find from the Republican period of Roman history and the Greek City-States that preceded it. And it was this positive impulse about the dignity of humanity that drove Britain and then the United States to transcend the universal hold of feudal monarchy that defined our world prior to the modern era.

Both of these impulses are important. As Reinhold Niebuhr once observed, summing up these two insights: "Man's capacity for justice makes democracy possible; but man's inclination to injustice makes democracy necessary".[1]

That fairly well frames our collective challenge at the moment regarding Civil liberties in an age of Terrorism. We have before us a substantive challenge to our Constitution of such a magnitude that the Congress should be holding hearings and debates of a depth and scale such as we had with the Watergate hearings. Yet, this is not taking place. Indeed, apart from Frank Rich's op-ed piece in the New York Times last week, you hardly ever read about the issue. I find this odd because I suspect that when historians write about American history a century from now, this one issue will probably define how they structure the chapter on the first two decades of this century.

The question is this: Can we uphold the Constitution while we indefinitely suspend the Constitution? Can Lady Liberty bear the torch of human rights if we are not able to grant those rights to the enemies of human rights? Is our Constitution actually up to the task of defending itself?

This question has been with us now for 6 years and we need to seek some serious answers to it as a nation, before we accidentally hand on to our children a world we did not intend but did not prevent.

Right after September 11th, the Executive Branch sought and received greatly expanded powers to act in the face of an unknown emergency that threatened all the citizens of our country. At the time, I should suspect that 95% of us voted 'yes' to extend those powers, even if we had reservations. But at the same time, most thinking people recognized that we could not go on like this for long.

Those powers included the ability to detain suspected 'enemy combatants' indefinitely; the establishment of special military tribunals outside our normal court system that have substantially reduced abilities for suspects to challenge the charges brought before them, substantially limiting access to evidence and testimony that form the basis for the charges, and substantially constricts their ability to appeal these charge. The Executive branch also sought and received much wider latitude on what constitutes 'cruel, inhuman, or degrading' treatment of suspects, standards that we have obligated ourselves to adhere to in various international treaties from World War 2 unto the present. The Executive branch also sought and received expanded abilities to do surveillance, not only on communications abroad, but on U.S. citizens, relaxing the normal standards of 'probable cause' that we normally adhere to.[i]

The justification for these at the time was that the threat to us as a nation was irregular and unprecedented. The question before us now is 'do we want to live in a world where these restrictions on Civil Liberties become a permanent fixture on the landscape'?

I want to go out of my way here to be clear. I use Executive Branch rather than the President because this is not one of those covert attempts to Bush Bash. It is not clear that the President acted in a manner qualitatively different than any other Commander in Chief would have acted in those circumstances. Under the wisest of leaders, we would still have this issue. As Yale Law School Dean, Harold Koh has noted, we almost always have an imbalance tilted toward the Executive Branch when we have to develop legislation in the midst of national security threats.[ii]

The threat of this new terrorism is very real. We are not helped by those who suggest this threat will go away if America just changes her foreign policies and/or retreats from involvement in the Middle East, or Muslim countries, etc., etc., etc... It simply doesn't take seriously what these Jihadist say for themselves. One axiom I learned writing my dissertation on World War 2 was to simply read what people say for themselves before you start explaining them away on other motivations they are not aware of themselves. Just read the Nazi party platform; just read Mein Kampf; just read The Little Red Book; And start with the presumption that if these people actually get the power, they will do what they say they will do.

The Jihadist have produced quite a lot of material for review. While it is true that they find certain American policies reprehensible, those are only symptoms of the fundamental problem that America poses simply by virtue of being what we are. And they will not stop until we are destroyed. In all probability, this threat against us will remain active and volatile for decades to come. They plan to use our system against us whenever they can, whether it is our relaxed immigration policies, the way that our media covers the news, our Open society, the internet- all of these virtues they plan to use to subvert our dominant world influence. Likewise they exploit our strategic weaknesses (like the very narrow shipping lane all the oil tankers traverse in the Persian gulf or the loose controls around nuclear weapons or biological weapons in the former Soviet Union).

This threat is not just external but we have cells forming around us right now and they will attack us again, in all probability, right in our area. Mayor Bloomberg, speaking for all New Yorkers, has noted repeatedly that while we need security vigilance around the nation, 'every one of the terrorists we pick up has a New York City subway map in their pocket.'

Despite the accusations of 'fear mongering' that we read in the op-eds these days, for the purposes of thinking about Civil Liberties, it is better to presume that this is our context: We are in a protracted war with an enemy that represents no country, systematically disregards the rules of war engagement, lives abroad and also around us, has a religious commitment to our destruction, will use our laws cynically against us to their advantage, and possesses a patience of many generations to achieve its end. What kind of Civil Liberties do we extend to ourselves and to others in this world?

I dare say, we have never had a threat this broad, nor this insidiously subtle, nor this indirect- a threat to our ordinary way of life. And it is precisely our way of life that is at stake. For if they defeat us with some catastrophe, we lose. But if we have to so change to meet this threat that we can no longer be said to be an Open society, we lose. The question is whether our Constitution is up to the task of facing a threat of this scope and magnitude.

When you put it that baldly, you see that we almost need to have Congressional hearings as broad and in depth as the original Constitutional Convention in order to define for ourselves what we are willing to live with and what won't pass muster.

What are the areas for substantive discussion?

1. The Scope of Surveillance and the Conditions for its use: The USA PATRIOT act expanded the scope of surveillance and also relaxed the conditions for the government to eavesdrop on telephone and e-mail correspondence as well as reviewing financial documents. Prior to 9/11 the FBI was only allowed to by-pass normal court warrants and use national security letters to wiretap 'terrorists or spies'. This standard was broadened or relaxed under the PATRIOT act to include anyone that was 'relevant to' a national security investigation.[iii] This definition is intentionally vague and open to interpretation precisely because the exact nature of the threat against us was indeterminate right after the attacks on our country and it provided some much needed flexibility. However, long-term, what exactly are we talking about here? What are some of the limitations on 'relevant to' a national security investigation.

In addition, the PATRIOT act expanded the number of people in the FBI that would authorize national security letters in the place of warrants and it expanded the types of information that the government could request.

The PATRIOT act was originally written with 'sunset dates' on its provisions. It was a temporary measure. But, as you probably know, permanent ratification of its provisions has been proposed. However, before we grant these broad powers to the government, we need a broad discussion of exactly how much surveillance we are willing to allow for our grandchildren…under what conditions… when a warrant is required, when it can be exempted. These are big questions that impact not only our ability to apprehend terrorists but also will affect the daily lives of future generations.

2. Our treatment of enemy combatants. As you know the irregular nature of Al Qaeda terrorism has shown all of the holes in the Geneva Convention that we developed in the aftermath of World War 2. Al Qaeda operatives do not represent a nation. They do not wear uniforms. They systematically violate established norms of war, deliberately targeting citizens. They operate more like a criminal Mafia or a band of pirates. Our criminal court was not designed to address this type of threat. Neither are any of our international treaties adequate to developing protocols that can be applied easily and directly.

As a result the Congress passed the Military Commissions Act (in 2006) to temporarily redress this lacunae. This bill established new military tribunals that are presently the subject of review by the Supreme Court for their constitutionality.

It also defined 'unlawful enemy combatants' but it left the definition of what constitutes an 'unlawful enemy combatant' sufficiently wide that they do not have to have engaged in armed conflict or the execution of acts against our country or the planning of acts against our country.

It is very difficult to define what we mean by an 'unlawful enemy combatant' in an emergency situation against a new enemy that we don't completely understand. Even thinking about it today, it is a very complex subject. Are terrorists best defined as 'irregular soldiers' as the bill designates or are they better understood as 'criminals' as I recently heard argued by retired General Wesley Clark?

And what are the constitutional requirements for due process in these new Military tribunals? In our first go at this, the government was quite concerned about divulging evidence and sources like it normally would at regular trials for fear that they would accidentally abet other terrorists who could figure out their covert sources by piecing together the testimony brought against the accused.

As a result, those detained as 'unlawful enemy combatants', like those at Guantanamo Bay, were not guaranteed the right to be present at their hearings; they were not guaranteed the right to review the evidence presented against them; they were not guaranteed the right to challenge the admissibility of evidence used against them. The presumption was that the governments evidence and testimony was trustworthy and the presumption was that the governments evidence was obtained legitimately. And these 'unlawful enemy combatants' have been effectively detained indefinitely.

When Americans bring themselves to reflect on the actual situation of people detained under these conditions, almost all Americans cringe at the prospect of making this normative because it doesn't reflect the values that we stand for and fundamentally believe in.

Our situation is made all the more difficult because the United States is effectively defining these protocols for processing Al Qaeda operatives alone, and we are having to think about a new type of enemy that doesn't fit in the categories of yesteryear. With the Geneva Code, we had the benefit of the comity of nations all participating constructively and developing rules for processing combatants that were fairly well known at the time. Surely, we will want to proceed carefully and thoroughly in the construction of new tribunals and the rules surrounding them. It would suggest that we need even more time for a broader and deeper review than at the end of World War 2.

Supreme Court Justice Sandra Day O'Connor addressed the Army Cadets at West Point in 2005 and asked them these questions: "What law governs the detention and interrogation of terrorist suspects? And how are you to know what standards apply? And what does your country demand?"

It is a very important question and she raised it precisely because of its lack of clarity at the moment. And note her conclusion. "This is where we expect Congress to step in. But it has done surprisingly little to date to clarify United States policy towards prisoners in the war on terror."[iv]

This cannot continue. One of the clearest responsibilities of our nation as the Leader of the Free World is to set an example for all to follow. Ideally, it is a standard that dissidents in countries run by tyrants can cite as an appeal to conscience in the press. At the moment, the near opposite is true. At the moment, it is plausible for petty suzerains from Zimbabwe to Burma to Khazikstan to argue that what they are doing in their treatment of political dissidents is not qualitatively different from the United States does with terrorists. If this trend is allowed to bloom, it will start us down a path that will ultimately lead to a de-stabilized comity of nations- where we pay public lip service to human rights but privately (wink, wink, nod, nod) more countries feel a freedom to disregard them in the cases they think are exempt "for reasons of national security". None of us wants to be associated with that era.

3. Third, what are the established methods of interrogation? We need to be clear about this. I suspect that almost all of us get nervous when we read about the need for 'alternative interrogation procedures'. The phrase feels like bureaucratic legalese reminiscent of the propaganda in the Soviet Union. Waterboarding (just short of drowning people), induced hypothermia (freezing people just short of death), mock executions, extreme sleep deprivation (to the point that you are starting to lose your sanity), putting people in stress positions (like hanging them with arms tied behind their back (which is incredibly painful)… All of these, and there are others, have been prohibited not only by the Geneva Convention, but also by the United States Army Field Manual.

As you know, there is a vigorous debate among military officers as to the effectiveness of these techniques period! I am seeking an answer to this question at the moment, but I would suspect that a large majority of our officers do not believe that these methods yield credible intelligence to justify their use irregardless of the issues raised for human rights.

At a minimum, we need the considerable input from our military leaders on an issue like this. We need to review testimony from earlier eras, like the officers in World War 2, when we established the Geneva Codes.

From 2001 to the present, the justification for these extreme measures has been that they have broken a couple key terrorists and the presumption is that we would not have been able to develop intelligence by other methods. These anecdotes do not constitute a sufficient basis for a policy. We need much more thorough review.

I watched the HBO documentary on Abu Ghraib, which interviewed some of the privates that were there when the infamous abuses took place. The first thing that came clear in the interviews is that no one really understood what the rules were. Closely related to that was a confusion of command. I did not know, and you might not have either, that the government actually hired 'interrogation sub-contractors' in addition to the CIA and the Military. So our soldiers, often right out of boot camp where they are drilled to follow orders, were given conflicting sets of commands from different contractors, forced to decide for themselves what to actually implement. It was simply unacceptable confusion made so by the fact that we haven't yet given serious and sober review on these protocols.

Furthermore, what that documentary makes clear in a subtle way, is that treatment degrading to prisoners also degrades those that execute it. Some of those kids will never be the same. We cannot ask this of our soldiers… If we support the troops, let's give them a mission they can complete with honor and dignity.

4. Finally, the practice that has come to be known as 'extraordinary rendition', now unfortunately the subject of a Hollywood movie. That is when we send terrorist suspects to third countries where respect for human rights is not an issue so that they might deploy methods of interrogation and harsh punishment that would be unconscionable in the United States. Ultimately, this practice will be reviewed by the Supreme Court to see if it passes constitutional muster. But, how much better if we actually had Congressional input that gave clear guidance as to how we should proceed. How much better if our law simply made this clear.

We have some big questions before us, questions that we cannot simply decide by expedient necessity in the midst of crisis. Up til now, we have heard the plea from the Executive Branch 'trust us to do what is right and give us latitude in the middle of the crisis'. The most important thing was to be able to act quickly. There was a season for that appeal and that season has passed.

We need serious Congressional input that will serve as a teaching tool for our nation about the meaning of the Constitution in an age of Terrorism. We may well be at a crossroads where the meaning of the Constitution has to be thought through again because the challenges to it are that broad.

I remember as a High School student watching the Watergate Hearings, the probing questions that were raised by the Senate Minority Leader Howard Baker from Tennessee. And who could forget the constitutional lessons doled out by Senator Sam Erwin from North Carolina that usually began "I'm just a country lawyer…" and went on to get right at the heart of the matter. [That country lawyer that graduated 2nd in his class at Harvard Law school]. Those hearings, however partisan they may have begun, ended up being a critical teaching tool for our nation on the meaning of the Constitution. We are at such a moment like that again.

It is a peculiar thing that when you ask the great questions, the big constitutional questions, those small-minded, partisan divided, constantly campaigning sychophants that we call Congressman- all sit up and become Statesmen. It is like they are all back in Constitutional Law class and for a brief while, they remember why they got involved in this calling in the first place.

Perhaps you saw the PBS series recently on World War 2. Like a lot of Americans, I could not stop watching, mostly out of sheer respect for the generation that stood up and went through incredible sacrifice.

At one point, I found myself almost wistful for the clarity of the old days. I was wistful for an era when enemy soldiers wore uniforms and established actual defenses; I was almost wistful for the time when hateful ideology organized itself in public political parties and tried to take control of the country; I was definitely wistful for an era when we Americans we could come to the rescue on the side of what was right.

And I wondered if maybe I wasn't watching the zenith of American history, the peak before the turn? I wondered if this might be what it felt like to live at the very end of the Republic of Rome, just before the Romans vested more and more power in the Emperor and the Senate began the slow, 30 decades long slide towards irrelevance. I hope not.

I think of my good friend, Ernest Gordon, who survived the Japanese interment camp and wrote about it in his book Miracle on the River Kwai (which later became the movie To End All Wars). When I think about what he, his men, the whole generation endured to secure the virtues of freedom for all of us that we might be here- the freedom they gave us was much more precious than a rising standard of living, a better education, and exotic vacations.

The freedom they gave us is what makes us great. They did not evade the responsibility that fell to them and neither should we. And you know what? History will forgive us if we simply do what is safe, if we simply defend ourselves however we have to. But if we do, if we only defend ourselves, genuine greatness will elude us, and the freedom they gave us will pour through our open hand like grains of sand. We may become richer in the future but we will not be greater.

We can no longer pretend that we didn't know. We can no longer pretend we didn't understand the consequences. We can not avert our gaze from activities we have authorized others to do on our behalf cloaked in the dark.

We cannot defer to the Executive Branch or the Commander in Chief or the military simply because it is expedient. No, this very difficult work falls to all of us, and through us to our Congressmen.

May we stay calm in an era of fear. May we become wise in the midst of ambiguity. May we have the courage of our core convictions as a people. May future generations say that our character was up to the challenge. May that say that we were born for times like these. Amen.

[1] This quote originally came from the Forward to the First Edition of "The Children of Light and the Children of Darkness".

[i] First, my thanks to Nick Camera for pointing out the important work that the ABA has done and passing on the articles cited below. I am indebted to the work of the American Bar Association for much of what follows. Mark Agrast wrote a piece "Defending Liberty and the Rule of Law After September 11, which can be found in Human Rights Magazine (Winter, 2007). You can access it quickly at www.abanet.org/irr/hr/winter07/agrast.html. 'The Section of Individual Rights and Responsibilities' for the ABA has been active and thorough in trying to define the nature and scope of the issue as well as suggest the implicatins that follow from it.

[ii] The Article is "Why the President (Almost) Always Wins in Foreign Affairs. Lessons from the Iran-Contra Affair", The Yale Law Journal Volume 97, Number 7, June 1988.

[iii] See Mark Agast "Defending Liberty and the Rule of Law" under the heading 'Domestic Surveillance'.

[iv] Quoted by Ella Massimino and Avidan Cover in "While Congress Slept", Human Rights Magazine (Winter, 2006). It can be found at www.abanet.org/irr/hr/winter06/massimino.html.