LIBERATING AFGHANISTAN BUT YIELDING FREEDOMS AT HOME:
Reflections On The Year Since September 11

By ANUPAM CHANDER

Wednesday, Sep. 11, 2002

The test of a nation is how it responds to crisis - and we can take great pride in much of our response over the past year. That response started on September 11 itself, and never stopped: We will never forget the day when firefighters and police officers ran up the steps of the towers, when everyone else was running down.

Lesser sacrifices than theirs were also moving and important: We should also celebrate, for instance, the bravery of the government employees who went back to work at the Pentagon - showing both that they were not afraid and that America, even if attacked, would not be deterred.

Sadly, however, not all of our response has been as admirable. It is our legal system, in the main, that has fallen short - and that should be a point of great concern to every citizen, and especially to those of us who practice, teach, or study law, or who interpret it from the bench or enforce it as prosecutors.

During the last year, our soldiers have helped Afghani rebels remove the brutal Taliban from power. While much more needs to be done to establish security and a basic humanitarian infrastructure, Afghani girls can once more go to school openly. Women can once again seek employment outside the home. The Al Qaeda terrorist network no longer finds in Kandahar a safe haven to plot and train for its operations. Music has returned to the streets of Kabul.

The American people demonstrated resolve in their support for the war effort. There was no question of our commitment of men, women, and material to the ouster of the Taliban. And there can be little question that, under the circumstances, ousting the Taliban was the right thing for Afghanistan and, indeed, for the world.

Aiding the Victims At Home, and Making Clear What the War Was Not

Meanwhile, back at home there was an outpouring of sympathy, reflected in the raising of billions of dollars in donations to those affected by the attacks. From the one-in-ten of us born overseas to those born in the U.S.A., we all cried for those lost in the rubble and endeavored to help those who survived.

The entire world suffered with us. Friends of mine from Italy and Germany emailed to express their condolences and their wishes for the safety of my loved ones. A merchant in Turkey from whom we had purchased rugs wrote to express his grief. People in India collected money to donate to the September 11 funds.

New York is the crossroads of the world, and the world was distraught at the loss. After September 11, we were all New Yorkers, whether we lived in Nebraska or New Delhi. And the world also cried with us for those lost in Washington and on the hijacked airplanes.

Meanwhile, for its part, our government, much to its credit, refused to see the conflict as a war between Islam and the West--despite the efforts of some American scholars to depict it in that way. Such a conflict was exactly what Osama Bin Laden hoped to stoke--yet not only the U.S., but also the billion people of the Islamic world (with the exception of some committed extremists) utterly rejected that view.

Yielding Freedoms at Home: Only Halting Successes

The legal system, unfortunately, has suffered somewhat during the past year. Here, our success has been more halting. It is a sad irony that while we have liberated Afghanistan, we have yielded some of our freedoms at home.

And these are only some of the recent manifestations of a Justice Department that seems more concerned with exercising authority than with justice. As a result, the venerable international group Human Rights Watch in a recent report now cites the United States for arbitrary detention and violations of due process and for "running roughshod" over the presumption of innocence.

A Place Without Law?: The Shame of Our Position Regarding Guantanamo Bay

In our retreat from civil liberties, we have even created a kind of lawless zone. In Guantanamo Bay, on the island of Cuba, we deny the applicability, at least to the people we have "detained" there, of either international law or the U.S. Constitution.

We claim only to follow the spirit of the Geneva Conventions on the treatment of prisoners, but resist any mechanism whereby that claim might be tested or enforced. Indeed, we brought the prisoners to Guantanamo specifically because it is the only place in the world where we maintain total control but deny sovereignty, claiming all the while that Cuba is sovereign there.

In sum, in Guantanamo, by legacy of our colonial past, we have power, but refuse responsibility. (I have spelled out this argument in an earlier column.)

Mixed Results From the Courts That Have Heard War On Terrorism Cases

Our courts, too, have been inconstant guardians of our liberties. There is reason to hope, but also reason to worry.

On the positive side, a recent federal appeals court opinion in the case of Detroit Free Press v. Ashcroft rightly decried the secret detentions of immigrants. "Democracies die behind closed doors," the court warned, in a powerful opinion by Judge Damon Keith.

The judge was right to use strong language, for the government's rationalizations for the secret detentions were weak. The government had said, for instance, that it wanted to keep the detentions secret in part to protect the privacy of the detainees. (But if so, why not let them drop the secrecy if they chose?) This clever dodge was reminiscent of the government's rationalization for the World War II internment of Japanese Americans, which was justified as a means to protect those interned from retaliation from other citizens.

Security and Liberty Can Co-Exist: It's Not A Simple Trade-Off

The Bush Administration acts as if the price of security is diminished liberty--at least the liberty of immigrants or foreigners. But this is wrong. Security and liberty are fundamentally compatible.

A people that cherishes liberty is more secure, strengthened and united by their commitment. Secrecy serves only to cover up governmental errors and abuses. It removes our ability to demand better performance of the government. Democracy, as Judge Keith reminds us, relies on an informed public.

Furthermore, the Constitution leaves plenty of room for security. Better public surveillance, informers, and--most importantly--processing of information will enhance security.

For example, it now appears clear that the terrorism whose anniversary we now mark could have been stopped had we just better understood the information we had already gathered. No civil liberties need have been sacrificed.

The Administration's suggestions that nothing was done pre-9/11 because of concerns about the appearance of "racial profiling" seems a cynical effort to play the race card to confuse the issue. Acting on specific knowledge of terrorists in the United States can hardly be called "racial profiling."

Undermining Our Support for Human Rights Worldwide

Prior to September 11, when other nations responded to domestic terrorism by curtailing liberties, we demanded the restoration of freedoms. Other countries explained why they thought they need to crack down, but we called their bluff, pressing them to find a better way. Now the bluff we need to call is our own government's.

Other countries, familiar with terrorism at home, had surrendered liberty, believing they were enhancing security by the sacrifice. From Italy to Northern Ireland, from Colombia to Peru, from India to Russia, the world has lived through the cruelty of political violence against civilians. An occasional glance at the website of the Daily Excelsior, a newspaper published heroically in Jammu and Kashmir, reveals the daily terror in which some parts of the world live.

Until September 11, the United States denounced these actions. We demanded that nations live up to international standards of human rights. We complained of the inevitable travesties of justice as innocent people were wrongly imprisoned. We decried "hooded justice"--where courts sat in secret. We held that everyone deserved a fair and public trial before an impartial court. This was part of what made America great: our generally strong stance as a beacon for liberty.

One year ago, that honorable position changed. We now no longer sharply criticize China for actions against Muslim secessionists in Xinxiang province, or Russia for its actions against Muslim secessionists in Chechnya. When our government speaks publicly of human rights, we limit ourselves to the atrocities of Saddam Hussein or, on occasion, the lack of liberty in Iran or North Korea.

Like the three monkeys, we do not see, hear or speak evil anywhere outside the three-country "axis of evil." But of course, evil exists elsewhere - even amidst governments we support, such as Saudi Arabia's.

Challenges for the Coming Years: The Work Yet to Be Done

An anniversary asks us not only to review the past, but also to think of the future. There is much work yet to be done in responding to the terrorist attack.

We need a Marshall Plan for Afghanistan, rebuilding a state pulverized by decades of bombs and gunfire and a people reduced by the lack of education.

Rather than a foreign aid policy of subsidizing arms purchases from American defense contractors, we need a foreign aid policy that subsidizes investments in health and education. The United States contributes only 1/10th of one percent of its gross national income in foreign assistance.

That is the lowest percentage among the world's industrialized nations - although, due to a special disbursement to Pakistan last year, the U.S. is for now, at least, the largest donor in terms of the amount of dollars. (The Organization for Economic Cooperation and Development report on foreign aid provides this and other information). We should not be last on the list - certainly we can give more in foreign aid than we do.

We must also come to grips with the morality of new methods of mechanized warfare. Warfare by drones and other planes in the sky inevitably results in civilian deaths--such as the horrible accidental bombing of a wedding party in Afghanistan.

For five years, I used to walk every day through the World Trade Center on my way to work. The horror of the loss of the twenty-eight hundred innocent souls there and in Washington will continue for me, as for all of us, through future anniversaries. But trying to build a better future for the world's people is the way that we can best honor the dead.


Anupam Chander is an Acting Professor of Law at the University of California, Davis, School of Law. A graduate of Yale Law School, he specializes in corporate law, cyberlaw and international law.

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