Muzzled (13 page)

The real question, then and now, which no one is directly addressing, is how far we are willing to go to keep ourselves safe from terrorism. Most Americans, according to polls, are willing to sacrifice some rights in order to allow the government to keep the nation safe. Those polls show more Americans are willing to entrust government with expanded reach into their lives. But Americans don’t want to create a big-brother state. Nonetheless, some conservatives, notably former vice president Cheney, want to silence anyone concerned about essential questions regarding constitutional protections—the heart of the American experiment. So, using another brand of political correctness, they demonize those who insist on public debate and demand accountability for American political leaders who go beyond constitutional limits.

The irony in this situation is that it is usually conservatives who are sensitive to any intrusion by big government, whether it comes in the form of a pat-down by airport security or a government health-care plan. The consensus in the intelligence community is that the country is safer today from terrorism than it has ever been. In their language, targets—U.S. airports,
buildings, and monuments—have been hardened, and Congress and the Bush and Obama administrations have all greatly increased surveillance under the law. Nonetheless, the unspoken truth that the political alarmists deliberately ignore or sweep under the rug is that America can never be completely safe as long as we live in a free and open society. Nothing is absolute.

That includes the notion of absolute security. Endless redundancies in intelligence and crime-fighting networks dedicated to heading off the slightest terror threats, whatever the cost, are being justified by politicians who fear being blamed by the public and the other party for the next terrorist incident. Yet absolute security from any and every terrorist act is an illusion. And when leaders voice such expectations, they are inviting disappointment. While security is an all-important responsibility of the government, it is not the government’s only responsibility. The president and members of Congress swear an oath to preserve, protect, and defend the Constitution of the United States—not the security of the United States. The Constitution declares our rights and liberties and defines us as a nation. Nothing in it offers a guarantee of safety from crazed, jihad-inspired terrorists.

We seem to be caught between the ideas of Benjamin Franklin and those of Abe Lincoln. Franklin once wrote that those who would give up liberty for temporary security deserve neither and will lose both. On the other hand, President Lincoln once said, in justifying his Civil War–era suspension of habeas corpus (the right of any suspect to appear in court and be told the charges against him), that, in essence, extreme times call for extreme measures. The political pressure discouraging
mature conversations about the tension between liberty and national security has caused a terrible loss of American unity. Free people have to agree on the
limits
of defense against terrorism if they don’t want to sacrifice the very rights that guarantee our freedom and form of government. At every step of the way, from how we define terrorists to how we detain and treat them when captured to how we treat our own citizens during this time of emergency, there is a need for unhindered conversation about these serious topics. We don’t need or benefit from censorship. The central question is how to protect the Constitution and the values that underlie America while effectively fighting the enemy. There are no easy answers. But the politically correct mudslinging on both sides makes it nearly impossible to cut through the finger-pointing and get to that all-important debate.

That conversation starts with the question of whether we have the necessary laws to stop the terrorist once we know who he or she is. And that is just the start of the debate. Americans also have to contend with how to treat an enemy who is not covered under the Geneva Conventions, which deal with soldiers representing another country during a time of war. Is it okay to torture a terrorist? Is it okay to hold a suspected terrorist without trial? Does that trial have to take place in U.S. civilian courts? Or does it better serve the nation to try terrorists in military courts?

Unfortunately, open discussion of these questions got treated as out of bounds after the 9/11 attacks. Congress issued a resolution authorizing the president to use whatever force he felt necessary to combat the terrorist groups behind the 9/11 attacks. The president did not have to make his case to Congress
or the American people. Public support for the president in the immediate aftermath of the 9/11 attacks was at a record level, more than 90 percent. That level of trust across political, class, racial, and religious lines gave the president the latitude to speak and act for all Americans. The normal appetite for discussion of policy was quieted by a desire for fast action and effective response to prevent further terrorism. Vice President Cheney, speaking on
Meet the Press
after 9/11, said the Bush administration had license to work secretly, outside the normal congressional, judicial, and public oversight and debate. In other words, beyond the constitutional checks on power in America. “We’ve got to spend time in the shadows of the intelligence world,” he said. “A lot of what needs to be done here will have to be done quietly, without any discussion.”

The congressional resolution allowed the president to secretly give the CIA authorization to kill al Qaeda operatives, to open secret prisons overseas, and to torture people. In one memo that set off huge controversy when it was later made public, a lawyer for the Bush administration, John Yoo, advised the president that without any public debate or congressional authorization he could start a war anywhere in the world in pursuit of terrorists. In 2002 President Bush issued an executive order denying Geneva Convention protections—specifically safeguards against torture—to terrorist detainees. Attorney General John Ashcroft decided—without public debate—that waterboarding, a technique in which the victim feels as if he can’t breathe and is drowning, is not torture and is legal. One Bush administration legal memo concluded that anything can be done to terror suspects as long as it does not lead to organ failure, impair bodily functions, or result in death.

To me, the most distressing aspect of not allowing the American people in on the debate about how to handle terrorism was the president’s lack of trust in the Constitution and the law. Decisions on U.S. law that impacted our constitutional rights suddenly fell into the hands of a few obscure political appointees working on secret memos at the Justice Department and the White House. They competed to please the administration by giving the president unprecedented, unquestioned levels of power. American values, democratic principles, and confidence in the maturity of the American people and their representatives in Congress to work through a threat to our nation got left behind in the name of ending the terrorist threat through expansive presidential powers. Anyone asking questions was dismissed as naive, unpatriotic, or sympathetic to terrorists. In my experience, as word of these decisions leaked into the news, rather than comfort Americans, it led to uneasiness over what we believe our nation’s values are with regard to using torture, championing human rights, and protecting civil liberties. The president’s political rivals began to voice concern that there was no process at work, no legal framework for such vast exercise of power by the president. Talk of naked power grabs and dictator-like mandates had to be quieted by the Bush administration with claims that such extralegal steps resulted in forcing more information from suspects and informants and stopping more terrorist plots. As much as the public wanted to believe in the administration, there was no way to be certain, and earlier events, such as the government’s justification for attacking Iraq, had weakened public faith in the administration’s words. Americans had been told the United States had to go to war in Iraq because
Iraq had weapons of mass destruction. No such weapons were found. Allegations of a link between Iraq and the terror attacks of 9/11 had also proved unsupportable; the president had openly claimed that Iraq was training al Qaeda terrorists. It was never proven. The crisis of confidence was heightened by dwindling international support for the United States in Iraq and Afghanistan and the handling of terrorists.

The situation became glaringly difficult to reconcile with American ideals. News stories revealed terrorists being stripped naked and dying at a CIA prison in Afghanistan, sensory deprivation of detainees, attacks on the religious beliefs of detainees. Then came stories of prisoners shackled to the floors of airplanes for twenty hours with black goggles covering their eyes and ears. We discovered that in 2003, U.S. interrogators used the waterboarding technique on Khalid Sheikh Mohammed, a top al Qaeda leader, 183 times in one month. The Red Cross issued reports on the deteriorating psychological health of detainees at Guantánamo Bay. And in 2004 Americans saw pictures of male Iraqi prisoners being stripped, paraded in front of American female soldiers, and threatened by dogs at Abu Ghraib—Saddam Hussein’s most notorious prison—in Iraq. The news that the United States engaged in such abuse undermined claims that Saddam Hussein’s tyranny had been replaced with the promise of American liberty. “I’m gravely concerned that many Americans will have the same impulse as I did when I saw this picture, and that’s to turn away from them,” said a pained Senator John McCain, a former prisoner of war in Vietnam. “And we risk losing public support for this conflict.” McCain called for full disclosure of what procedures had been authorized for handling prisoners
in American custody. In 2004 the U.S. Supreme Court ruled that detainees at Guantánamo Bay had the right to challenge their detention.

The enduring controversy over waterboarding of Muslim terrorists inspired several journalists, from Fox News Channel reporters to tough-guy radio talk-show hosts to magazine writers, to undergo the procedure themselves and report on whether they considered it torture. Christopher Hitchens, writing for
Vanity Fair
magazine, had it done to him and not only declared it torture but added that once he understood the full barbarity of the act, he realized that the U.S. government had lied when it said it was not torture. “One used to be told,” Hitchens wrote, “… that the lethal fanatics of al-Qaeda were schooled to lie, and instructed to claim that they had been tortured.… Did we notice what a frontier we had crossed when we admitted and even proclaimed that their stories might in fact be true? I had only a very slight encounter on that frontier, but I still wish that my experience were the only way in which the words ‘waterboard’ and ‘American’ could be mentioned in the same (gasping and sobbing) breath.”

As the calls from the media and some politicians grew for getting the courts and Congress involved in the discussion about torture and how best to handle terrorists, the Bush administration responded by destroying copies of memos authorizing torture and later by destroying videotapes of interrogations. The intransigence of the administration became the issue. Administration officials’ brand of political correctness claimed that anyone who disagreed with them was speaking out of turn and endangering national security. The implication was that even opening the subject up to public debate was an act of treachery.

But eventually even fellow Republicans began to rebel against the administration. Senator McCain got forty-six Republicans to join forty-four Democrats to overwhelmingly approve an amendment to a defense bill mandating an end to the torture of detainees. The administration treated it like a nuisance. When the entire Congress passed the Detainee Treatment Act in 2005—outlawing the use of torture on anyone, anywhere in the world—the White House treated the effort with contempt. Administration officials did not make congressional leaders aware that administration lawyers had privately authorized U.S. military and intelligence agents to use torture. When those memos came to light, Republican senator Lindsey Graham of South Carolina said: “If we change who America is in trying to win this war [then] we will lose.”

By 2007 three detainees at Guantánamo Bay had committed suicide. The same year the Supreme Court ruled that the U.S. military must comply with the Geneva Conventions for humane treatment of prisoners. By 2009 a Spanish court had announced that it was considering filing an indictment against Bush administration officials for human-rights violations. The worldwide outpouring of unity with the United States in the days after 9/11 had long evaporated. Fewer countries contributed their troops to the war in Iraq. And U.S. public support for the war dwindled. Polls also showed declining support for U.S. efforts to confront the terror groups directly linked to 9/11, al Qaeda and the Taliban, in Afghanistan. Yet former vice president Cheney continues to critique President Obama as insufficiently committed to the Bush administration’s policies for fighting terror. Cheney’s criticism comes even as President Obama has sent more troops to fight terrorists in Afghanistan and committed the U.S. military to remain in
Iraq well beyond the previously promised exit date of 2011. President Obama is continuing Bush administration policies on rendition, where prisoners are transferred to other countries for harsh, extrajudicial interrogations, as well as allowing wiretaps without warrants and keeping the Guantánamo Bay prison open while not holding trials for terror detainees. Attorney General Holder may have blamed Congress for not allowing Khalid Sheikh Mohammed’s trial to occur in civilian court in the United States, but isn’t the buck supposed to stop at the top?

The Obama administration has found it easier to continue those policies than to start the difficult but necessary conversation about the limits of democratic freedoms. How many Americans are willing to sacrifice some liberty, some autonomy, because they believe that it is a necessary price to be paid in a time of terrorist threats? It may be that most Americans are willing to approve a suspension of some rights in the name of fighting terrorism. Most people feel they have nothing to hide. It may be that large numbers of Americans believe the government can already invade computer messages and tap phone lines. But the Obama White House is closing off those questions because it is afraid critics will charge it with being weak, lacking the Clint Eastwood and Jack Bauer gumption to shoot first and deal with the questions later. The president might also be afraid that he will open himself to vicious political attacks if another terrorist attack occurs as he leads the nation through this maze of issues. And there is some truth in that, as Republicans find political advantage in questioning the Democrats’ dedication to fighting terrorism. So as a result, the Obama White House is bullied into compliance with
policies that candidate Obama campaigned against when he won the White House in 2008. And the nation continues to be denied the much-needed debate on how to reconcile the tension between battling terrorists and protecting our ideals and upholding our nation’s founding principles of individual rights.