'Liberty and Justice for All' Means Security Risks

By Conor Friedersdorf

America's most objectionable actions since the September 11 terrorist attacks have been rooted in a failure of courage: We were no longer brave enough to act as morally as before. The spectacle of the Twin Towers falling was terrifying, as were the anthrax scare and the Beltway sniper. Countermeasures were appropriate—actions as sweeping as the overthrow of the Taliban and the hunt for Osama bin Laden. A nation has a right to defend itself against attackers and their hosts.

But the War on Terrorism has extended far beyond that.

The U.S. tortured humans who were already disarmed and imprisoned. It swept innocents into indefinite detention, where they languished for years without charges or trial. It began intrusive spying not just on foreign political and military elites but on the innocent masses in democratic countries, including at home. It has killed hundreds of innocents with drones, many of them women and children. 

The specter of terrorism was invoked by apologists for all those policies.

Let's say—though there is no persuasive evidence that it's so—that torturing prisoners gave us a nugget of useful intelligence; that spying on the masses in Europe makes us a bit safer; that the phone dragnet and PRISM marginally reduce the risk of terrorism; that killing thousands with drones in Pakistan and Yemen slightly reduces the risk of a future terror attack. Even if all those things were true (and again, no conclusive evidence exists for any of them) the policies wouldn't be just.

The cost to innocents is too high, especially when compared to the unlikelihood of a given American dying in a terrorist attack. We are imposing huge costs on people who've done nothing wrong, and at best we are gaining minuscule amounts of additional safety against a risk that almost certainly won't kill us anyway. To put things in perspective, take a risk that is orders of magnitude greater, the risk of dying in a car crash. Ask yourself if America would be justified in unintentionally but predictably killing women and children abroad, or spying on millions of innocents, if doing so would reduce fatal car crashes by 1 percent.

Of course not. It would be immoral to impose costs on foreign innocents to make ourselves a little bit safer. The lives saved, in my hypothetical, would be far greater than any plausible number of lives saved from the counterterrorism policies I noted.

On several occasions, I've quoted Jim Manzi making the following point when writing against torture:

We have suffered several thousand casualties from 9/11 through today. Suppose we had a 9/11-level attack with 3,000 casualties per year every year. Each person reading this would face a probability of death from this source of about 0.001% each year. A Republic demands courage—not foolhardy and unsustainable “principle at all costs,” but reasoned courage—from its citizens. The American response should be to find some other solution to this problem if the casualty rate is unacceptable. To demand that the government “keep us safe” by doing things out of our sight that we have refused to do in much more serious situations so that we can avoid such a risk is weak and pathetic. It is the demand of spoiled children, or the cosseted residents of the imperial city. In the actual situation we face, to demand that our government waterboard detainees in dark cells is cowardice.

Now Bruce Fein, a constitutional lawyer who served in the Department of Justice during the Reagan Administration, makes a similar point about NSA spying and drone strikes. During a UCLA debate on Edward Snowden, Stewart Baker, who served in the Bush Administration, argued that we can't debate surveillance publicly. Here is Fein's response:

It may well be true that some of the public debate informs the enemy. And the Fourth Amendment stands for the proposition that we take risks that unfree people do not take in order to have self-government and protect liberty. We do take risks. We knowingly take risks that unfree governments don't take, because we are different. We have a philosophical principle that I suppose is the most important distinction between us and other countries, perhaps in the history of the world: that it's better to risk being the victim of injustice than to be complicit in injustice. 

You're complicit in injustice when you make decisions that have grave consequences, including killing people or spying on them, without a confidence level that you have it right. There was, about two or three months ago, an ad hoc hearing held by a member of Congress, Alan Grayson, that examined the consequences of not following that dictate. In 2012, there was a 68-year-old grandmother picking vegetables who was vaporized by a Predator drone based on the reliability of intelligence gathered by the NSA and the CIA. And she was killed with her 9-year-old granddaughter, who came to Washington, D.C., to testify about exactly what happened. 

She said yes, she was there, she had been asked to pick the vegetables by her grandmother, then it became very dark, and there were sounds overhead, from the drone. Then she heard screaming. She couldn't tell where from. She thought it was her grandmother but she wasn't certain. Then she began to run. She was frightened to death. Then she looked at her hands and they were all bloody. She tried to stop the bleeding and couldn't. Her grandmother was dead. 

That's the United States of America, at least in one instance. That's our government that did that, with authorities that are knowing and open, that we accept. That seems to me, however, not what we want to be as a government. It means that if we want to avoid being complicit in injustice, we need to accept risk, knowingly, because that's what civilized people do. You can't live in a country with liberty without taking risk. Get out of bed in the morning and you take risks. You want to reduce risk to zero? Put everybody in prison or kill them all. Then you have zero risk, right? And I submit, ladies and gentlemen, this is a very profound view of life that separates civilized from savage nations. You've gotta take risks. Not stupid ones. But you've got to remember that life is uncertain. And you want to make certain that you don't become complicit in injustice yourself. That reduces us to the opposition. 

A country that lived up to Fein's words would be exceptional. How perverse that so many who tout our exceptionalism most loudly are also apologists for unjust U.S. policies.

I submit that a majority of Americans would agree with Fein, and support policies in keeping with his words, if national-security-state officials and their apologists weren't so adept at hiding the true nature of the policies they're pursuing. Torture began in the dark. Even when it came to light, those who perpetrated it exaggerated its effectiveness. The NSA operated in secret before Snowden exposed its domestic spying—and almost immediately, its apologists dramatically exaggerated the number of terrorist attacks domestic spying had stopped (zero, as best anyone can tell, not almost 60, as they once claimed). Drone strikes were also conducted in secret for a long time, and government officials still won't level with Americans about how many innocents are killed. They hide the truth because they aren't sure their agenda would win on the merits.

Perhaps I'm wrong. Maybe with full knowledge, Americans would choose to impose costs, like the predictable deaths of innocent foreign children, because it might make us a tiny bit safer.

As it stands, we've not been given a chance to make fully informed moral choices. We're still complicit in what's done in our name. Hence the need to protest if, like me, you're morally uncomfortable with where U.S. leadership has taken us. There are many Americans who'd favor policies that resulted in our violating the rights of fewer innocents abroad even if it meant bearing more reasonable risks. But neither our legislators nor our president treat that position as a legitimate one. As ever in America, the solution is democratic: They should be replaced.

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