The Massive Attack on American Civil Liberties and Freedoms, Essay Example

Introduction

The general public and federal authorities have focused on security concerns and breeches after the massive attack on American civil liberties and freedoms of 9/11.  Though the federal government is there to prevent future unwarranted attacks against our nation, the question that gives rise is just how far will our government rise to protect us or what bounds would they pursue to infringe upon our civil rights and freedoms? “Another question is “Should Americans be willing to give up their precious Constitutional Rights in the name of national security?”  (Dershowitz, 2004). Dershowitz’s article discusses six major issues which encompass protection of civil liberties and the protection of our national security. The major issues include as follows:

“The history of civil liberty issues in wartime domestic surveillance and the USA Patriot Act Racial profiling the use of torture in confessions the designation of “enemy combatants” plus recent developments, such as the Abu Ghraib prison scandal” (Dershowitz, 2004).

Under normal conditions, infringements of human and civil rights of a citizen would have redress through Preliminary Reference or Judicial Review.  Under United States law this redress would be at the level of the United States Supreme Court. There would be a few elements to prove which include: “Has there been a violation? Is there ‘standing’ for the case to be reviewed and under what grounds is there standing such as ‘Procedural Impropriety, Wednesbury Unreasonableness, etc.” (“Constitutional Law”).

Due to the unconventional means of today’s wars, different strategies have arisen from the techniques and evolved with involvement of third world countries. These questionable military techniques and unmoral acts used have all been a contributing factor for the conduct U.S. servicemen have chosen relating to popularity and some choices considering unethical and inhumane. The world as a whole is into a new area of a different type of warfare due to the unconventional techniques used by third world countries. These techniques have proven effective, though a defense is still being sorted out. These techniques have put a toll on U.S. justification and morale for chosen techniques to defend our safety and security as used in the Vietnam War.

With respect to the history of civil liberty issues in wartime, “this month more than any other time in history, will be the month any other Americans will make their plea to the court for the right of their civil liberties to be respected.” (Honorable Williams, 2004). There will be a very fine line to walk for the protection of our nation’s security and the individual protection of a person’s civil liberties or rights and freedoms. This meeting will be held at the United States Supreme Court in 2004. The purpose of the tribunals was to shape history of enemy combatants and detainees and the right to prosecute during wartime. Abraham Lincoln declared laws for military tribunals to hold trial to prosecute during times of war because the tribunals rather than the regular courts, had the capacity had the ability to act fast and make legal and judiciary decisions faster than the courts. The tribunals also saved the terroristic information from becoming public in the sense of the privacy and safety of the country’s best efforts. “In 1942, the United States Supreme Court decided Ex parte Quirin, a case in which prisoners detained for trial by military commission appealed a denial of their motions for writ of habeas corpus.” (Honorable Williams, 2004). This case was the basis of George Bush’s plea to protect homeland security in the name of our country’s security. This illustration gave continued premise of military law over civil law especially in times of war.

During the Civil War there was much dissension of whether military tribunals should exist at all. People and politicians thought the tribunals held too much power and left the civil courts with too less power and the people with little to no recourse. Since terrorists are not always considered part of a militia group they should not always fall under military law. According to the rules of the Geneva Convention though, detainees must be part of “an identifiable militia group that abides by the rules of war.” (Honorable Williams, 2004). Lincoln often termed war as a suppression of rebellion against the states and the nations to counter-attack or prevent the acts of terrorism.

President Lincoln suspended the writ of habeas corpus which brought havoc and was dissemination against our civil liberties to be brought before a court of law. He further arranged an army to attempt to overthrow the government. Chief Justice was among the men who supported Congress during Lincoln’s time to do away with writ of habeas corpus. Vallandigham was the man responsible for bringing back the writ of habeas corpus and the writ of certiorari.

The Patriot Act has been in place to protect the nation as well as put a limit on the government’s enumerated powers to spy in open territory on peoples civil rights. However, since 9/11 the government has attempted through Homeland Security to stretch their powers to abuse their powers and enhance their ability to put surveillance on people and situations. These abuses are against what the United States Constitution mandates as an infringements of the peoples’ rights. “Many parts of the act are not tested and are quite controversial in nature and are currently being challenged by many liberals.” (Paul, 2005).

Racial profiling was an issue prima facie 9/11 that has brought light to issues of even more racial identity crisis since the presidential election of President Barack Obama. “Obama has used differences in race to further his own personal agenda in the political arena.” (McDonald, 2009). When posed with the racial question of Professor of Harvard Henry Louis Gates recently, Obama chose to ignite tension rather than simply calm the situation with diplomacy and tack. It appeared he ‘premeditatively’ transformed this into a ‘racial debate’ for his own advantage rather than diffusing the situation for the best of the country.

The United States Has Resorted to Using ‘Sleeper Cells’ as a Means of Torture

It has often been inferred that Homeland Security has abused their powers. Congress is constantly arguing their techniques and tactics are ethical and have not infringed upon any terrorists or United States citizens civil rights.

Dershowitz proposes three ways to deal with terrorists and torture. The ticking bomb argument is primarily the leading argument for those people in favor of using torture to pull information out of terrorists. One would not want to use a ‘sympathy plight’ with people who place bombs around the schools of their loved ones because for one thing they have no love and cannot be reasoned with. There should absolutely be no prohibition of torture because torture is needed to prevent such catastrophes. Amateur torturers though are not useful in this kind of work. This kind of work would definitely be done by people trained and skilled on torture practice to extract information from torturers.

Many pro-torture theorists find themselves without much support because of gaps in their ethical methodology. People do not realize that ‘third-party’ torture is just as dangerous as express or implied (direct and indirect) torture. The stakes are high at all levels and should be dealt with accordingly.

People wonder whether the legal use of torture shall be allocated through torture warrants. This would mean torture warrants would be nationally recognizable as the standard of national policy to combat terrorism. The infliction of pain to extract information otherwise known as the ‘ticking bomb’ does not surprise Harvard professor Alan Dershowitz one bit. He urges, “If we are to have torture it shall be authorized by a court of law.” (Silvergate, 2010).  Dershowitz went on record to oppose the use of record but many liberals state that he actually turn-coated in the midst of opposition and radical expression of sides and sanctioned the use of torture to preserve human rights and civil liberties of all Americans.

The Israeli’s in the 1980’s used torture as a means to pull out information from captives just as the American’s do from their captives. Israeli’s were known for methods of long sleep deprivation, sight and sensory deprivation, prolonged hygiene and toilet deprivation and other degrading treatments such as forcing more than one prisoner or detainee to use joint toilets together, etc.

The designation of enemy combatants has been highly publicized (detainees). At first the detainees were sent to Guantanamo Bay and were stripped of all right to rights to ‘habeas corpus’. Acts of torture were inflicted upon them without avail. Today, steps have been taken to give them rights to fair trial if warranted. Many argue they are prisoners of war and they have no civil rights. Other argues they should be read their inalienable Miranda rights and should be tried in civil courts rather than military courts. This process would be highly difficult for U.S. military personnel to enforce under the conditions and environment of the battlefield. Just this week a California native U.S. citizen perceived as a U.S. spokes person for Al-Qaeda was captured in Pakistan. The young lad grew up on a goat farm in California and migrated to Pakistan and is said by the FBI to have joined an Al-Qaeda boot camp over the past six years. He has since been used in many videos to kill moral and spread the views and ideas of Jihad. The FBI has stated he has asked all fellow Islamic brothers to take up arms against the United States and went into great detail at smaller instillations at strategic locations and the ability of Islamic brothers to cause terroristic harm on U.S. soil.

The Abu Ghirab Prison Scandal is the main prison where the detainees are sent and questioned by U.S. FBI and CIA agents for suspected terroristic activities and involvement. The latest detained California native is believed to have first class information on the whereabouts on Al-Queida’s number two leader as well as Osama Bin Laden. The FBI has labeled him as a ‘great catch’.  This prison, Abu Ghirab Prison System has a long history of its suspected unethical style and techniques of torture. The same prison is believed to have a location where ‘the nude pictures and water boarding were taken’. Much controversy has been drawn to this site due to the nature of the conduct of United States soldier and Central Intelligence Agency interrogators. Abu Ghirab Prison is the birthplace of just about all the questionable and unethical practices of military and all NATO interrogators. A number of United States military officers have resigned and/or been court marshaled due to the scandals that have mostly all originated from Abu Ghirab Prison. Due to these scandals, some U.S. military officers have been sentenced to Leavenworth for the questionable conduct. Although Abu Ghirab Prison is the U.S. and NATO’s main staging point for all incoming combatants, this particular site been well known for the rise of scandalous techniques throughout the entire Gulf War which still remains unsolved today. Some parts of the U.S. Armed Forces and governmental agencies have been divided with their opinions with references to the techniques that have led to the highly publicized scandals leading to question the numerous infringements of the civil rights violations and the Geneva Convention. Protagonists have argued the conditions of U.S. servicemen under these hostile environments are at risk. Antagonists share the view that U.S. servicemen are military personnel and do not fall under the protection of the same protection of civilians.

The Ticking Time Bomb Hypothesis

There are many pros and cons with the Ticking Bomb Hypothesis because Senator Charles Schumer and Professor Alan Dershowitz had to seriously explore the unpleasantness of torture. The hypothesis is the point when torture had to be re-examined at its true nature to determine if it was humane and even beneficial. A true victim of torture is not exposed to the democratic sense of liberalism as this is against the values of the American culture. “Many years ago torture was thought to be against American values” John Stuart Mill stressed that our culture stressed liberalism, solid values, the right to human dignity and self-determination. Torture took away these values without any recourse or right to self-perseverance. The acts of torture by Americans were only exposed following the aftermath of the horrendous 9/11 attacks and through the Iraqi War. It was very apparent that some form of torture had to be used as an interrogatories measure when Americans were at the face of extreme danger for the protection of our country’s security and to protect our military forces. Nietzsche and Foucault state there was nothing in the judicial system against any form of torture used; this was more of a political or moral view held by the American people. Aristotle once stated, “Cruelty is not listed as one of the most deadly or tainted sins.” (Luban, 2007).Only in today’s times people make regard to cruelty as one of the most vicious crimes to mankind. Montaigne and Montesquieu were probably one of the first proto-liberals to share this viewpoint. Liberals share the viewpoint that cruelty is not only a sin to mankind but they actually detest the thought of cruelty to mankind, hence detests torture in any form. It is very true to state that inflicting pain on man is a horrible thing to do. We must look at the larger picture as in the Afghan war and the effects of the ramifications that could have taken place if torture would not have been inflicted in some kind of fashion or form. “Why should torture be depicted as more demeaning than dropping a bomb on a country and killing innocent people and children simply to get to the leaders that are causing all the havoc?” (Luban, 2007).

The purpose of torture is to strip power and human dignity from the person being tortured in order to defeat the enemy through mind control. Of course, torture does get out of hand and innocent soldiers and citizens are often mutilated just as when bombs are dropped on countries to preserve the sanctity and freedom of our country. We are speaking of American torture rules than those animalistic torturers that made films of slicing the necks of our soldiers in Iraq for the mere pleasure to show their temporary power over the United States. Torture is about making a person wanting to submit to protect the safeguard of the country through minimizing casualties. “Hitler, Pinochet, and Saddam Hussein tortured their political prisoners so that their enemies would be afraid to oppose them.” (Luban, 2007). The American military uses torture to gain insight and confessions to make tactical moves to win wars and try to end and minimize casualties. We do not have the same mind frame as those animalistic torturers from the Middle Eastern countries who simply enjoy torturing people and displaying this on television without any thought of how this might affect the innocent families of the victims they kill.

So what does one do when a victim of torture will not talk and give away sensitive information? Most of the time the United States uses what is called liberal forms of torture. The sole purpose of torture must be considered for intelligence gathering or to save innocent lives and not to enjoy harming another human being. What if there was a situation where one person was holding the chance to bomb the entire city of Chicago and would not speak or even holding a child captive? Where would the United States draw the line? Would they move to torturing the bad person’s family and if so for what period of time until they received the needed information? To what degree would they go or would they try another method to accomplish the goal of saving lives?

The second part of the torture theory assumes that torture will only be administered in time of extreme and definitive emergencies. The theory suggests that the person doing the torture will do so under certain orders under a chain of command. Of course, the chain of command was not used in the situation in Algeria where the police took orders and mutilated thousands of innocent civilians. Liberal ideology has a fantasy that torture can be controlled and this is not guaranteed by any means.

With this information, the ‘ticking bomb syndrome’ is fraudulent and imperfect. It should really be addressed intellectually to what degree torture can be controlled, how well and what are the consequences if torture does get out of control of authorities. Torture cannot be separated from cruelty and terror by politics and statutes made by politicians, the government or anyone else especially when the United States President authorizes torture in so many cases.  Fred Bauer (2007) states, “The ticking time bomb case ignores the fact that there is no time bomb”. This would be the same as saying if a person came into my home I am justified to shoot them, but am I still justified shooting the same person just because they walked on public street right in front of my home?

Dershowitz’s Comments Regarding Jeremy Bentham

Dershowitz speaks of rights that are not created by God naturally and examines the philosophy of whether these rights are actually ‘inalienable’ and should be created by man and the law. He went into detail when he wrote his notorious book Rights from Wrongs.  Dershowitz essentially concludes that rights are not given by God in any nature or form but rather are vicariously named and defined according to cultural and geographic circumstances that occur in life with particular emphasis on political situations. “God does not speak to people in one single voice.” (Dershowitz, 2004).  Nature neither plays a part in our rights and wrongs. He emphasizes rather the law of nature defends the premise and it is there for the survival of the fittest or a test of the weak against the strong. “Dershowitz appears to believe that a rationally designed and maintained constitutional republic would be both rigid enough to withstand popular oppression and flexible enough to respond to evolving historical contexts.” (Dershowitz, 2004). A person’s psychological needs and personal demands also play a huge role in their preference in what they choose to consider a right and wrong or simply justice and law.

Dershowitz has essentially been noted for his outspoken views used during his time during American history on civil liberties and rights which has set the platform for many legal scholars today. Still today he is known for his ‘impartial views on human rights’ and well respected for his ability to possess an f flexible and level headed view of Constitutional Rights.

In effect Dershowitz felt that using non-lethal methods to secure information was the most adequate method of torture. In order to control the amount of torture put on a person the accountability could be tracked through warrants or another means accepted by the government. Eventually, “increasing visibility and accountability could possibly eliminate torture altogether”. (“Tortured Reasoning”)

Bentham’s utilitarianism approach consists of three major groups including public policy, social reform and the administrative theory. He has received recognition in the first two theories but not much recognition in the administrative theory policy area. He outdid his predecessors Fayol and Gulick by an entire decade but did not receive the earned recognition for his hard earned efforts. “The theory of utilitarianism is based on the moral that a deed is judged by the happiness it provides to others.” (“Business Ethics”). Bentham found much happiness in intellectual pleasure and learning experiences. He was educated in the law just as his father but he never practiced the law. He instead became a philosopher and enjoyed the study of utilitarianism and other theories of life. Reforms by utilitarianism made its way into slavery, commerce, child labor law, industry and business. Bentham has been a great influence on today’s business world.

Dershowitz’s Comments About Voltaire’s Views

According to Dershowitz, Voltaire has very comedic and satire views of the world and helping others.  “Around the 1750’s it was noted that Voltaire drew parallel to the views of the noblemen, militia, politicians, religious leaders, and some philosophers to deal with the coercive labor and wartime issues.” (Voltaire, Littell & Candide, 2004). Candide, the protagonist was witness to the depravity of war when he was imprisoned and forced to work as slave labor during the wartime. Candide’s father could not marry into the royal family because his bloodline was not considered royal enough to fit the lineage. Voltaire was not very fond of the present religious views rather wanted people to follow his religious views.    Dershowitz’s felt that Voltaire did not possess the ability to take a stand about the true meaning and nature of what civil liberties meant with relation to the U.S. Constitution.

Three Ways to Deal With the Use of Torture in the Ticking Time Bomb Situation, as Stated by the Israeli Government-Appointed Commission of the Late 1980s

“During the 1980s and 1990s, the Israeli government classified relatively mild torture techniques as “moderate physical pressure” rather than torture. (The Israeli Supreme Court overturned this policy in 1999.) The Bush administration is adopting a similar tack, reclassifying torture techniques such as water boarding as “alternative interrogation procedures.” (Head, T., 2010). Americans feel that renaming a torture technique simply does not minimize justification of the torture to a certain level that is an acceptable practice. The change of these Israeli practices has been under scrutiny since the mid 1950’s but they have always stood strong and independent because of constant problems with attacks from suicide bombings. Israel has been forced to invest money in many organizations for their hi-tech surveillance, elite forces, and military arms and has been a controversial ally of the United States. They have always remained independent without the support of NATO due to their militia tactics. They are still viewed as a leader and their high tech actions are strong as well as their elite military forces. Issues were discovered in the (6) Six Day War in the 1960’s however, they recovered swiftly. They remain strong in recovering terrorists, suicide bombing, NAZI war criminals, etc.

As Part of the Discussion About the Commission’s Conclusions, Include Dershowitz’s “Fourth Road”

According to Dershowitz torture does not have a purpose to save innocent lives “rather it is used to morally justify the use of torture.” (Wisnewski, 2008).  Torture is totally against moral standards according to Dershowitz. Michael Walzer, though has a different view of torture and examined if torture could be needed in some instances for the sake of political justification in such instances of militia and protection of our nation’s security. Dershowitz claims judicial should not get involved in the moral and legal issues of torture. It is proposed by philosophers that ‘torture warrants’ will limit the amount of torture that the government can give to terrorists. This will create some kind of public accountability as well as minimize torture for must needed basis. Torture is a fact of life and by no chance can it be totally eliminated. Some say torture warrants would give rise to an increase of torture due to the fact of immense practical obstacles that the United States government would not want to abide by or encounter. Further the power of the judiciary would be totally degraded due to non-compliance. With relation to the fourth road, idea of the fourth road is “To forgo any use of torture and simply allow the preventable terrorist act to occur.” On the contrary, these techniques as always argued, these terrorists techniques have been used around the world to justify questionable actions to obtain information for the security and well-being of a country’s best interest. In the hijacking of the Olympic Israeli athletes, Israel and West German combined tactical forces to ensure the safety of its civilians. This horrifying act was a small example of the many tribulations Israel has had to endure with relation to active terrorism.

Israel has always has political pressures from allied nations but the elite forces have handled the matters of terrorism uneventfully with respectfully. They let the military override the judicial support Dershowitz’s view. Dershowitz is believed to be part Jewish himself and has remained to be ‘impartial in his legal and ethical views of terrorism’. He has taught and demonstrated these views in his long and distinguished career at Harvard Law School. Dershowitz will clearly go down in history as notorious outspoken views on civil rights as well as enforcing the laws of the United States Constitution.

Conclusion

The most controversial form of torture post-9/11 currently used by the United States government particularly the Central Intelligence Agency (CIA) is a highly controversial technique commonly called ‘water boarding’. This technique is based mostly on the premise of creating fear and in some cases there have been reports of accidental drowning. The procedure used by the government is to restrain the captive and place a thin piece of cloth over the captive’s face, tilt his/her head backwards, laid in a vertical position with water consistently poured over his/her nose and mouth simultaneously with the captive totally unaware if the supply of water will cease. This form of torture has led to long-term emotional and psychological damage besides already reported cases of accidental death of which the United States government appears to deny.

Middle Eastern countries views on homosexuality have been another area attached and exploited by U.S. and NATO servicemen assigned to security of their combatants. The technique of taking pictures and exploiting them with these soldiers in compromising positions is taboo and highly unaccepted amongst these Arab (Islamic) countries. There have been reports of U.S. service men even bringing in dogs to engage in sexual acts with Islamic acts with Islamic detainees with the goal of obtaining an emotional and psychological breakdown of the detainees. This technique has been highly questionable but effective and again has led to the resignation and imprisonment of some U.S. military servicemen.

References

Dershowitz, Alan M. Should the Ticking Bomb Terrorist be tortured? : a Case Study in how a Democracy should make Tragic Choices /
Civil Liberties vs. National Security in a Post-9/11 World / ed. by M. Katherine B. Darmer, Robert M. Baird, and Stuart E. Rosenbaum (2004), p. 189-214

Luban, D. (2007) Liberalism, Torture and the Ticking Bomb Retrieved February 29, 2010 from, http://www.virginialawreview.org/content/pdfs/91/1425.pdf

Wisnewski, J. (2008) Unwarranted Torture Warrants: A Critique of the Dershowitz Proposal

Honorable Williams (2004) Abraham Lincoln and Civil Liberties in Wartime Retrieved March 5, 2010 from, http://www.heritage.org/research/nationalsecurity/hl834.cfm

Dershowitz, A. Rights from Wrongs: A Secular Theory of the Origin of Rights New York: NY Basic Books Publishing, 2004

Head, Tom (2010) Is Torture Justified? Retrieved March 8, 2010 from, http://civilliberty.about.com/od/tortureandrendition/p/is_torture_just.htm

Paul, R. (2008) Texas Straight Talk Retrieved March 9, 2010 from, http://www.house.gov/paul/tst/tst2005/tst122605.htm

McDonald, B (2009) America’s Racial Time Bomb is Ticking Retrieved March 9, 2009 from, http://www.thetrumpet.com/index.php?q=6363.4823.0.0

Silvergate, H. (2010) Torture Warrants Retrieved April 16, 2010 from, http://www.bostonphoenix.com/boston/news_features/other_stories/multipage/documents/02042267.htm

Bahrain Center for Human Rights (2009) Bahrain: Security Authorities return to the use of torture by “falaqa” and electrocution to extract confessions from detainees Retrieved March 9, 2010 from, http://www.bahrainrights.org/en/node/2673

Tortured Reasoning Retrieved April 6, 2010 from, http://www.pbs.org/inthebalance/pdf/dershowitz-tortured-reasoning.pdf

Business Ethics (2010) Retrieved April 16, 2010 from, http://www.mightystudents.com/essay/Business.Ethics.Jeremy.38034

Constitutional Law London: England Routledge-Cavendish, 2009.