The War on Terrorism
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Security Versus Civil Liberties

February 6, 2002
 
n an effort to learn more about the perpetrators of the September 11 attacks and prevent future acts of terror, the Bush Administration, especially Attorney General John Ashcroft, has taken aggressive legal steps in dealing with the nearly 2,000 men arrested in connection with the murders. Such steps—which have included circumventing attorney-client privilege and establishing military tribunals for trying suspected terrorists—have left many Americans weighing the costs and benefits of national security and civil liberties. In recent years, a number of Atlantic articles—some written before, some after September 11—have addressed this question of what balance should be struck between national security and civil liberties.

Writing in December, 2001, Richard A. Posner in "Security Versus Civil Liberties" looked to precedent to determine how civil liberties have been reevaluated in times of national emergency. Over the course of American history, Posner wrote, neither public safety nor liberty has been given absolute priority over the other: "They are both important, and their relative importance changes from time to time and from situation to situation."

But the importance of security, in his view, should not be underestimated. He pointed to episodes in American history, such as the South's secession, Pearl Harbor, and the Tet Offensive, when threats to national security were overlooked with disastrous consequences. Given that the danger of terrorism against Americans is currently very high, he argued, civil liberties "should be curtailed [because] the benefits in greater security outweigh the costs in reduced liberty." He conceded that responses to security threats may sometimes seem severe in times of crisis—as in Lincoln's suspension of habeas corpus during the Civil War—but civil liberties, he wrote, always "remain part of the balance even in the most dangerous of times, and even though their relative weight must then be less."

A decade earlier, in "What Kind of Democracy?" (June 1990), Raymond D. Gastil also addressed the question of the degree to which civil liberties require protection within a democracy. At that time, citizens of a number of countries in Eastern Europe and elsewhere were demanding the right to self-determination, and were converting their governments from other power systems to democracies. In those newly formed democracies, Gastil observed, "the emphasis tends to be on the existence of electoral or legislative mechanisms that allow for choice, with less attention paid to those civil liberties that make that choice effectively free." Democratic elections, he realized, did not necessarily ensure any recognition of civil liberties, and this convinced him that "political rights without civil freedoms would offer few of the values that I cherish in democratic societies, while civil freedoms without political rights (insofar as this is conceivable) would offer the major values that I understand democracy to promote." He therefore suggested that the success of a democracy should be judged perhaps not so much by the extent to which it upholds the form of democracy, but the spirit. "Do we want the establishment of democratic regimes," he asked, "that will soon come to deny those liberal, humanistic values we see as essential to human rights?"

Last month, The Atlantic took up the question of whether it can be considered justifiable for a country that purports to believe in the essential importance of human rights to deny those rights to those who would deny them to others. In "A Nasty Business" (January 2002), Bruce Hoffman considered the French Army's torture of suspected terrorists in the 1950s to extract information instrumental to the eradication of the National Liberation Front [FLN], a terrorist group in Algeria. The French justified their actions by arguing that the civil liberties of the terrorists were inherently less valuable than the innocent people put at risk by terrorist actions. The Army's methods did succeed in temporarily crippling the FLN. But in the long run, Hoffman explained, the extreme methods of the French ended up backfiring:
The approach ... at least strategically, was counterproductive. Its sheer brutality alienated the native Algerian Muslim community. Hitherto mostly passive or apathetic, that community was now driven into the arms of the FLN, swelling the organization's ranks and increasing its popular support.... The army's achievement in the city was therefore bought at the cost of eventual political defeat. Five years after victory in Algiers the French withdrew from Algeria and granted the country its independence.
Hoffman reserved judgment, however, and cited other examples in which the use of terror had proved to be the only effective means of fighting terrorism. In Sri Lanka, for example, where an especially vicious terrorist organization known as the Tamil Tigers has long intimidated the populace, the Sri Lankan army has found that the only way to deter new terrorist acts is by "inflicting on [terrorists] the same pain that they inflict on the innocent."

Finally, an October, 1986, article by Phyllis Rose, "Tools of Torture: An Essay on Beauty and Pain," also took torture—and the circumstances under which it is used—as its subject. She argued that torture is most often associated with commitment to an overarching ideology:
You have to convince people that they are working for a great goal in order to get them to overcome their repugnance to the task of causing physical pain to another person....

It is not always private and perverse but sometimes social and institutional, vetted by the government and, of course, the Church. (There have been few bigger fans of torture than Christianity and Islam). Righteousness as much as viciousness produces torture.
"If taking goals too seriously is the danger," Rose suggested, the antidote to a society's inclination to use torture may be a matter of prioritizing the immediate and material over the abstract.
The best discouragement of torture may be a radical hedonism that denies that any goal is worth the means, that refuses to allow the nobly abstract to seduce us from the sweetness of the concrete. Give people a good croissant and a good cup of coffee in the morning.
As the Bush Administration struggles with the seemingly insoluble quandary of how to address terrorism without undermining civil liberties, perhaps Phyllis Rose is right. An attitude of measured pragmatism may serve us better than one of indignant righteousness.

—Tim Lavin and Sage Stossel


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Tim Lavin was recently a New Media Intern for The Atlantic Online. Sage Stossel is an editor at The Atlantic Online. She draws the weekly cartoon feature, Sage, Ink.

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