9/11 at 10: Debating Security and Liberty

Constitutions are said to be written for times of crisis as well as for times of peace. As the Supreme Court said in 1866, the year after the Civil War ended, the U.S. Constitution is “a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” But is that in fact true? The terrorist attacks of September 11, 2001, tested this principle like no other event since World War II. Did the Constitution and its safeguards of liberty, privacy, and equality survive the attacks? Ten years after that fateful day, it is worth asking whether the Constitution indeed applies “equally in war and peace.”

The answer is still being worked out. On the one hand, our government’s initial responses seemed to dismiss the Constitution as an optional protocol. President George W. Bush’s administration authorized the indefinite detention of anyone he asserted was an “enemy combatant,” without a hearing and without access to the courts. The CIA established secret prisons, into which it “disappeared” suspects and held them incommunicado for years, subjecting them to “enhanced interrogation tactics” that we would instantly decry as illegal if applied to our soldiers–including stripping them naked, depriving them of sleep for up to 11 days straight, forcing them into painful stress positions for hours at a time, slamming them into walls, and waterboarding them. Other suspects were abducted and delivered to countries we had long decried for their use of torture–so that those countries could interrogate them under torture for us. The National Security Administration secretly put in place a massive wiretapping scheme that monitored phone calls and emails of U.S. citizens without a warrant or probable cause. President Bush unilaterally established military commissions in which defendants could be put to death without independent judicial review of any kind. And the president claimed the unprecedented power to violate criminal statutes with impunity (in particular, those outlawing torture and warrantless wiretapping) when “engaging the enemy” in his role as “commander-in-chief.”

These measures suggest that the Constitution did not operate as much of a constraint after 9/11. As Francis Biddle, attorney general to President Franklin Delano Roosevelt during World War II, once said, “The Constitution has never greatly bothered any wartime president.”

On the other hand, President Bush was rebuked, and forced to retreat, on each of the above initiatives. The Supreme Court rejected his contentions that he could hold enemy combatants beyond the reach of the law and the courts, and that detainees in the “war on terror” do not deserve the protections of the Geneva Conventions. The president was forced to withdraw the Justice Department’s memo authorizing torture once it was leaked and published by the Washington Post. Congress rejected the administration’s view that an international treaty prohibition on cruel, inhuman, and degrading treatment did not apply to foreigners held outside our borders. And when the NSA’s warrantless wiretapping program was revealed by the New York Times, it was suspended until Congress authorized its resumption subject to a requirement of judicial approval and oversight. When President Barack Obama took office, he forbade torture and abandoned Bush’s claims of inherent executive power to act above the law as “commander-in-chief,” insisting instead that presidential authority is constrained by Congress and the laws of war.

In other words, to paraphrase The Clash, Bush “fought the law, but the law won.” In the end, the administration was compelled to pull back from its worst excesses. The system worked. But did it? When it comes to civil liberties, declaring victory would be as mistaken as President Bush’s grossly premature “Mission Accomplished” speech on the Iraq War in May 2003.

The reality is that civil liberties remain under threat, and will continue to be in danger for the foreseeable future. The 9/11 attacks spawned a “national security-industrial complex” of staggering proportions, comprised of sprawling new federal agencies and private contractors eager to profit from our fears. This juggernaut will persistently seek ways to expand surveillance and law enforcement authority with little concern for our rights. Moreover, many of the post-9/11 changes have not been rolled back – including the USA Patriot Act, which expanded surveillance powers by reducing judicial oversight; the “material support” law, which, the Supreme Court told us in June 2010, makes it a crime to advocate for peace and human rights if communicated to or on behalf of a group the government has placed on a list of “foreign terrorist organizations”; and data mining programs, which use sophisticated computers to troll through all sorts of computer-accessible data about us in search of suspicious patterns.

More importantly, there has been little or no official accountability for the legal and moral wrongs committed in the name of our security. President Obama has said that he wants to look forward, not back, and has opposed even the empanelling of a nonpartisan commission to examine and report on the U.S.’s use of torture and cruel and inhuman interrogation tactics. And he has invoked broad secrecy claims block lawsuits by torture victims seeking accountability. When such a fundamental legal prohibition has been so blatantly violated and government does absolutely nothing to account for the wrongs, the very bedrock of the rule of law is corroded.

These challenges underscore the importance of continuing to debate the issues of security and liberty that 9/11 put on the table. The strength of our liberties turns ultimately on popular commitment to the ideals they reflect. It was popular resistance, by citizens, nonprofit groups, the media, and courageous members of the military and the federal government that forced President Bush to retreat from his most extreme measures. The challenges did not evaporate with the election of President Obama, as his reliance on secrecy to block suits for torture and to hide the terms of the authority he exercises in authorizing targeted killings around the world dramatically demonstrate.

Securing Liberty, a debate sourcebook I edited with support from the Open Society Foundations and available to high schools free of charge through International Debate Education Association, seeks to inspire and inform discussion about some of the central issues of our day–including profiling, torture, accountability, surveillance, and the separation of powers. Our hope is that the next generation will use it to grapple with issues that will shape the world they inhabit for the rest of their lives. The security of our liberty turns on them.