By: Natasha Baker
Eternal vigilance is the price of liberty.
Facing every society is the question of the balance of safety versus freedom, security versus liberty and protection versus privacy. A key modern case study of this age-old balancing act is the Bush Administration’s detainee policy during the war on terror; in other words, how it treated those in US custody in the various arenas of the war (e.g. Afghanistan, Iraq, Guantanamo and CIA “black sites”).
One of the key underlying premises justifying the necessity of new detainee policies (known as Enhanced Interrogation Techniques, or EITs) was security: if Americans wanted to sleep safely at night, they had to provide their government with a green light to use whatever means necessary. This do-or-die philosophy was encapsulated by Vice President Dick Cheney’s now infamous “dark side” comment, made less than a week after 9/11 on Meet the Press with Tim Russert:
“We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows of the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective [emphasis added].”
The result was substantial change in policy, including redefining torture (“Physical pain amounting to torture must be equivalent in intensity to…organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture…it must result in significant psychological harm of significant duration, e.g., lasting for months or even years”) and illegalizing only torture, but not cruel, inhumane, and degrading treatment or punishment. This was a departure from the standards of the Constitution, the US Army Field Manual on Interrogation, and the US Military Code of Justice – all highly relevant domestic documents – as well as the United Nations Convention Against Torture, the international standard on torture.
The result of these changes, as is now well documented, was substantial abuse and torture – and Abu Ghraib (a US-operated detention facility in Iraq that became the center of an international scandal when, in 2004, photos of US soldiers torturing prisoners were released) is merely one example. The fallout from these revelations was enormous. Certainly the enemy was galvanized and the international community was indignant. Most damaging, however, was the suspicion of government that it aroused in the hearts and minds of the American public.
This blow to the public’s perception of the government points to a key flaw in the Bush Administration’s approach to the war on terror. It failed to earn the public’s trust. It emphasized secretiveness and exerted an almost authoritarian control over information and its policy decisions – behaviors that are fundamentally at odds with the tenets of a liberal democracy.
For example, in its new definition of torture (as presented in the “torture memo” issued by the Office of Legal Counsel on August 1, 2002), the Bush Administration stated that the president was allowed to break the US’ standing torture statute if it interfered with his commander-in-chief responsibilities. It also effectively silenced Congress, the State Department, the Supreme Court, and any other relevant government body by placing all power over detainee treatment policy into the hands of the executive.
At the 2000 Republican National Convention, President Bush talked about the need for both parties to end “politics of fear,” yet this is exactly the means by which he led his administration, constantly pressing the message that stakes were so high that everything and anything had to be allowed. This was a new war with a new enemy and the US had to be permitted to do whatever it believed necessary – even if it broke the law – to win the war.
Admittedly, the Bush Administration had much to fear as it tried to balance adherence to the law, an amorphous enemy, and saving American lives. However, the extent of the terror felt by the highest officials rapidly dissipated among the populace and allies as the passing of time brought no further attacks and no clear military victories. What was seen within parts of the administration as a “better safe than sorry” strategy was perceived as fear mongering in order to scare the American public into surrendering civil liberties and military traditions in the name of a new enemy. As Professor Jack Goldsmith explains in his book “The Terror Presidency,”
…[M]uch of the country and most of our allies didn’t think we were (or should be) at war with Islamist terrorists…they simply did not trust the administration’s claim that the threat of terrorism warranted a wholesale military response. Public judgments about the legality of presidential actions are colored by public perceptions of the stakes. When a nation is unambiguously at war and believes its future is at risk, practices that would have seemed wrong in peacetime are viewed as necessary and thus legitimate. (115)
Had the Bush Administration better explained itself and been more sensitive to public criticism, it would have had many opportunities to correct itself, particularly if it had included Congress more, resulting in a much more positive public perception of its policies. For the first several years of the war, however, it did not tone down its rhetoric and was not willing to admit to mistakes.
In 2006, President Bush gave a speech publicly acknowledging aspects of its detainee policy, specifically the CIA interrogation program that included the use of EITs, in a plea to save the program in the face of outrage following the Abu Ghraib scandal. President Bush’s speechwriter Marc Thiessen, in his book “Courting Disaster: How the CIA Kept America Safe and How Barack Obama is Inviting the Next Attack,” admits that:
We all knew when we were doing this program in 2002 to 2003, even though it was classified and was not public, that at some point it would become public and we would have to explain our actions…The president, after 2004, basically says: Look, we need to take all these tools we’re using, and we need to bring them out of the shadows. We need to make them public. We need to frame them, we need to explain them, and then work with Congress to get a legislative basis for them, as a way of getting acceptance from the public, so that programs will endure and be available to me and my successor. We need to institutionalize the tools for fighting the war on terror. (39)
Yet why was this not done from the very beginning? Why not preempt the supposedly predictable process of leaking by taking the sense of unity that developed immediately following 9/11, throw one’s self at the mercy of the American people, and be honest with them about the kinds of methods and tactics the US would need to employ to face such a formidable enemy?
The difficulty of conducting war in the 21st century cannot be underestimated. Today’s media give the public almost unlimited access to information about events that used to be the exclusive domain of the military. This is particularly tricky when dealing with a democracy. Freedom of information is an inherent right of any democratic society, yet war is an inherently undemocratic beast, requiring quick and decisive action.
Lest we begin to flirt with martial law, we must regularly remind ourselves that having a society based on the rule of law requires constant vigilance. Freedoms that we take for granted can be, and have been, taken away. Normally this process happens slowly and over several years, so that its various stages are imperceptible to the average citizen. This chipping away at civil liberties occurs more often with laws or rulings such as the Patriot Act or the “torture” memo than with war, but because the former seems more removed from the ordinary person than the latter, the public is slower to react. We must react; we must remain vigilant in these United States. Not only do we face enormous threats to our security from terrorists, we also face threats to our own liberty.
The issue of torture raised by the Bush Administration’s policies is polemical and case study worthy because torture is never publicly defensible in a constitutional, liberal democracy, regardless of who is in US custody or what their crime may be. This is an argument of principle; there are no circumstances in which torture is permissible in such a society. It opens up the dangerous possibility of a quiet, slippery slope whereby the US moves more and more in the direction of the tyrannies it so reviles, leaving behind the values and morals that define the American tradition. As Professor Steven Lukes argues in his “Liberal Democratic Torture” article, torture
…cannot be rendered liberal-democratically accountable, in the sense that it will sometimes be legitimate and, when not, punished, because its practice cannot be publicly recognized without undermining both the democratic and liberal components of liberal democracy. (1)
The option seems to be this: either continue torture and ignore its happening, or stop completely and permanently out of recognition of its fundamental incompatibility with the values, beliefs, and morals of a liberal democratic society.
There is one such belief – that of equality among all people – that is intricately tied to the topic of torture. Torture involves an assumption of the inferiority of the subject to an extreme; one cannot believe in a shared human essence – an absolute bare minimum of standards that all humans are deserving of – if one condones and engages in torture.
It was this message that the Bush Administration tried to put forth in its Middle East policy, in order to, presumably, garner support from both the American and foreign public. The rhetoric of bringing free societies to the Afghani and Iraqi people seemed to present a message of viewing them as equals to the Americans, and as equally deserving of what Americans view as the best form of government – their government: a peaceful, liberal, democratic society in which legitimate, elected governments regularly hand over power to subsequent administrations and individual rights and liberties are protected and preserved. Yet abuse and torture are the products of viewing the other in an unequal light, as one’s inferior, as subhuman. Instances of abuse on the ground were not in accord with the political message being sent from the top.
As youth around the world continue to fight for the establishment of democracies in their own countries, they struggle with having a say in answering the question of security versus liberty for the first time, often looking to countries like the US for guidance. Given its role as a model for democracy, the United States should be extremely prudent in adhering strictly to what makes it “the land of the free and the home of the brave.”