The United States and the World Since 9/11: Less Safe and Less Free

One result of the Bush Administration’s striking combination of ineptitude and contempt for law and government is a growing shelf, on its way to becoming a library, of books that chronicle and analyze the ways in which constitutional rights and international law have been assaulted under the flag of the “war on terror.” One being published this week, which Atlantic is helping to promote, is “Less Safe, Less Free: Why America is Losing the War on Terror,“ by David Cole, a Georgetown Law Professor, and Jules Lobel, professor of law at the University of Pittsburgh. Both are associated with the Center for Constitutional Rights (CCR), a key Atlantic grantee.

Like all the tenacious and principled advocates Atlantic has been privileged to support in dealing with the assaults on civil liberties since September 11, 2001 – more about a number of them shortly – Cole and Lobel reject the false dichotomy of a trade-off between essential freedoms and vital security. On the first, they are tough and succinct in cataloguing the ways in which the U.S. government has laid waste to rights, charging that it “treated the most fundamental commitments of the rule of law as if they were optional protocols to be jettisoned in the face of the threat of terrorism….imposing double standards on the most vulnerable, operating in secret, denying fair trials, imposing guilt by association, intentionally obscuring clear rules, asserting unchecked unilateral power, and violating universal prohibitions on torture, disappearance and the like.”

These incursions, often made in end-runs around Congress – just last week, the New York Times revealed the Bush Justice Department’s secret endorsement, at odds with its stated public position and concealed from Congress, of brutal interrogation measures — have shredded American credibility in the world and provided a ready excuse for dictators around the globe. Referring to the U.S. prison system for “enemy combatants” at Guantanamo, one foreign policy expert consulted by Atlantic Monthly (the magazine, not the foundation) responded: “I speak as a Republican, so this is not a partisan comment: The Founders would be rightly ashamed of us. We have forgotten, as Truman and Eisenhower never did, that America’s power is as much about what it stands for as its hard-power characteristics. This has all been put in the worst kind of peril by Gitmo.”

Indeed, as I have traveled around the world in recent months, including to many countries with close ties and history with the U.S., I’ve found it would be hard to overstate the amount of damage done by its misguided post 9-11 policies – including, of course, the handling of the war in Iraq. And most regrettably, as Cole and Lobel point out, the damage to liberty is gratuitous – security and safety can be achieved without such abuses: “There are plenty of preventive counterterrorism measures that conform to the rule of law – such as increased protections around borders and around vulnerable targets; institutional reforms designed to encourage better analysis of data and information sharing among the many government agencies responsible for our safety; prosecutions for conspiracies to engage in terrorist acts; even military force and military detention when employed in self-defense.”

There have been a few bright spots in the response to the Bush Administration’s post 9/11 policies. While Congress has too often been supine – demonstrated just today by Democrats’ acceptance of warrantless wiretapping out of fear that they will be branded as “soft on terrorism” — the federal courts have often justified the founders’ vision that an independent judiciary would serve as a bulwark against unchecked power. CCR recently convinced the U.S. Supreme Court to review this fall two cases challenging the government’s assertion that the Military Commissions Act strips the federal courts of their authority to review habeas petitions brought by Guantanamo detainees. CCR has also been instrumental in coordinating with U.S. law firms to provide legal representation for Guantanamo detainees.

The Brennan Center for Justice, another Atlantic grantee, had an important legal victory in June when a federal appeals court ruled that the President did not have the power to hold indefinitely and without charge a foreign national who was lawfully within the United States. (And another terrific book about post-9/11 abuses, “Unchecked and Unbalanced: Presidential Power in a Time of Terror,” was published this year by two Brennan Center officials, Aziz Z. Huq, director of its Liberty and Security Project, and Frederick A. O. Schwarz, Jr., senior counsel and also an Atlantic trustee.)

Another bright spot has been the courage and conviction shown by military personnel, including military lawyers, because they know better than most the consequences of U.S. policies that foster a double standard that puts the lives of soldiers at risk. Another Atlantic grantee, Human Rights First (HRF) has been particularly good at this, working with military leaders on legislation to ban cruel, inhuman and degrading treatment of U.S. detainees and on an amendment to the 2007 Defense Authorization bill requiring the military to report to Congress if a commander up for promotion has been implicated in abuse. HRF has also submitted amicus briefs challenging the use of detention without trial and helped secure the successful ruling in the U.S. Supreme Court that invalidated the initial military commissions established by the Bush Administration. The new director of HRF’s Law and Security Programme, Kevin Lanigan, was a U.S. Army Reserve judge advocate in Bosnia during 2001, Afghanistan during 2002-03, and Iraq during 2005-06, twice awarded the Bronze Star Medal for meritorious achievement and service.

Finally, as I noted earlier, the frontline advocacy groups working to protect civil liberties have risen to the occasion as never before. As Steven Hawkins, who with his colleague Rebecca Rittgers has led Atlantic’s funding in this area, puts it: “Not since the McCarthy Era have fundamental American values of privacy, due process and civil liberties been jeopardized in the name of national security.” And in contrast to those sorry earlier eras, the leading advocacy groups have been both unwavering in both their adherence to principle and aggressive in holding the U.S. to constitutional and international law standards.

Atlantic has worked to build the capacity of organizations to work on such issues as electronic surveillance, proscriptions against torture in the Geneva Conventions, human rights standards, detention and rendition.

We have also sought to foster collaboration among these groups, so that their work is coordinated, non-duplicative, and mutually reinforcing. Since 2004, Atlantic has invested nearly $18 million in 10 organizations at the forefront of challenging the Bush Administration’s post-9/11 policies. The organizations and information on our grants are listed below. They deserve our support – and our gratitude – for their work to keep the United States both safe and free in these difficult times.

***

American Civil Liberties Union – to promote and protect the rights of new and non-citizens in the US by supporting the advocacy, public education and litigation efforts of the ACLU’s Immigrants Rights Project  and lobbying work of the Washington Legislative Office. ($3 million)

American Constitution Society for Law & Policy – to promote debate and public education on the impact of the war on terror on rights and democracy by providing core support for the activities of ACS. ($2 million)

Asian American Justice Center – to support the Rights Working Group’s efforts to protect civil liberties and human rights in the US by coordinating activities among advocacy groups, particularly those challenging the lack of due process protection to immigrants. ($1.945 million)

Brennan Center for Justice – to secure a national security policy in the US thatrespects human rights by supporting the research and advocacy work of the Liberty and National Security Project. ($1.5 million)

Center for Constitutional Rights – to protect human rights and the rule of law in the US by providing infrastructure and programme support for the litigation and advocacy efforts of CCR.($2.25 million)

Human Rights First – to protect human rights and the rule of law in the US by providing core support for the litigation, advocacy and communications efforts of the US Law and Security programme. ($2.5 million)

Human Rights Watch – to protect human rights and the rule of law in the US by providing support for establishment of a Counter-Terrorism Programme. ($1.8 million)

Heartland Alliance for Human Rights and Human Needs/ National Immigrant Justice Center – to promote and protect the human rights of new and non-citizens in the US by documenting violations in the immigrant administrative and detention system in the Midwest and using data for litigation, advocacy and coalition building. ($850,000)

Center for National Security Studies/ National Security Archive Fund, Inc. – to strengthen the capacity of advocates to protect the rights of those who have suffered in the aftermath of 9/11 by providing core support to the Center for National Security Studies. ($1 million)

Yale University – to protect human rights and the rule of law in the US by providing core support for the litigation efforts of Yale Law School’s National Litigation Project. ($450,000)

Gara LaMarche