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Could America Lose Its Identity in Its Fight Against Al Qaeda?:


A Review of Michael Ignatieff's Lesser Evil: Political Ethics in an Age of Terror

By NOAH LEAVITT


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Friday, Jun. 25, 2004
Michael Ignatieff, Lesser Evil: Political Ethics in an Age of Terror (Princeton Univ. Press 2004)

Michael Ignatieff is the Director of the Carr Center for Human Rights Policy at Harvard University. In his new book, Lesser Evil: Political Ethics in an Age of Terror - based on a series of lectures he delivered in January 2003 -- Professor Ignatieff makes a thoughtful case for a U.S. response to terrorism that is based on a commitment to the values that form the basis of our liberal democracy.

Simultaneously, Ignatieff points out that by overzealously restricting our civil liberties during its anti-terror campaign, the U.S. government could in some respects succeed where Al-Qaeda failed - it could destroy our open society. Elsewhere, Ignatieff has written, "this is what defeat in a war on terror looks like. We would survive, but we would no longer recognize ourselves. We would endure, but we would lose our identity as free peoples."

In making its case, The Lesser Evil draws effectively on sources from areas including law, literature, history, philosophy and ethics. It also utilizes case studies of governments in the United Kingdom, Canada, Italy, Germany, Spain, Israel and Sri Lanka that have fought terrorism -- reminding readers that the U.S. is not the first country in recent history to face those who want to bring down its society.

After a rich and nuanced discussion, this book reaches a surprisingly moderate conclusion: The U.S. government may temporarily limit our rights in its fight against terrorists, but it may only do so subject to our constitutional system of checks and balances.

Between two evils - accepting temporary limitations on rights, and risking that terrorists may destroy our whole political system - Ignatieff sees rights limitations, enacted though proper procedures and policed by the courts, as "the lesser evil."

Strikingly, Ignatieff's work strongly suggests that the Bush Administration has violated even the minimal conditions he imposes for when rights abridgements may be acceptable.

At the end of his book, Ignatieff states "I have no doubt that we will prevail," but his own analysis undermines his optimistic message. The real message to take from the book is that unless we are more wary about the conditions - and information - upon which derogations of our rights are based, we may lose them, and our claim to be a free society, permanently.

Ignatieff's Basic Thesis: Rights Can Be Suspended, But Process Must Be Observed

In the first chapter, Ignatieff lays out the fundamental thesis of the work: In an open liberal democracy, force is sometimes necessary to cope with fundamental threats to a society. Thus, certain rights may be suspended, or derogated, during times of emergency or crisis, including times of terror.

But - and this is Ignatieff's crucial point -- they cannot be suspended willy-nilly. The government must publicly justify the measures it takes; subject its justifications to open political debate; and subject its measures to independent judicial review.

In addition, when legislation is passed, Ignatieff counsels, it ought to include "sunset" provisions to ensure it does not outlast the emergency for which it is designed. Such provisions, he notes, are more likely to be effective then unrealistic calls for an absolutist view that rights are inviolable even in times of emergency.

With safeguards like these, Ignatieff argues, democracies can survive the impact of terrorism, and still remain true democracies. He points out that the chief impact of terrorism on liberal democratic countries has been to strengthen executive power at the expense of courts, the legislature and a free press. He stresses that a key component of democracy is checks and balances - and, in particular, the system of "adversarial justification" of executive measures by legislatures, courts and a free press.

Indeed, in case after case, Ignatieff concludes -- from ETA ("Basques Fatherland and Liberty") in Spain, to the IRA in Northern Ireland, to the Red Brigades in Italy, to the Baader Meinhof gang in Germany -- democracy has won out over terrorism. Even Israel, under constant attack, has remained a democracy. Peaceful elections have been held; national coalition governments have changed hands smoothly; courts continue to review executive branch measures; and the country's press continues to be free and highly critical, much of the time, of its government.

Yet Ignatieff warns that "terrorism distorts democracy," because people want safety and so the executive branches of governments respond, and give themselves more and more police power - and power to infringe rights, without judicial oversight, along the way. Courts, too, typically defer and allow national security to take precedence individual rights.

"In these ways," Ignatieff explains, "terrorism cannot defeat democracy in a straight fight, but democracy can defeat itself."

The Requirement of Judicial Review, and Why the Bush Administration Fails It

While Ignatieff does not discuss the Bush Administration, the application of his prescriptions to current events is quite clear. As noted above, the book sets out a modest, almost conservative test for an appropriate political response. Yet measures taken by both President Bush and Attorney General Ashcroft dramatically fail that test.

First, Ignatieff stresses the necessity of judicial review. In contrast, the Bush Justice Department has argued that the judiciary has no power to review certain crucial decisions by the executive branch relating to the war on terror.

One such decision is the "enemy combatant" designation - and consequent incommunicado, indefinite detention -- at issue in the Hamdi and Padilla cases, which the Supreme Court will rule on in the coming days. According to the Administration, even a U.S. citizen can be deemed an "enemy combatant" without any judicial inquiry into the factual basis for the designation.

Decisions relating to Guantanamo Bay also fall into this category. According to the Administration, the almost 600 foreigners being held in Guantanamo Bay cannot bring federal habeas corpus claims in a U.S. court -- even though they are under U.S. authority on the naval base.

The Administration denies that U.S. federal court have any jurisdiction -- even if the detainees allege that they are entirely innocent and have been wrongfully confined, or that they have suffered abuse while detained.

The Requirement of Openness, and Why the Bush Administration Fails It

Second, Ignatieff argues for openness and transparency where fundamental rights - such as dignity and liberty -- are at stake. In contrast, the Bush Administration's track record is characterized by darkness.

For example, after September 11, thousands of Muslim and Arab-American men were secretly detained around the country. Often, their families had no idea of what happened to them or where they were. There was no reason for them not to have been informed. And many of the detentions, it seems, had no relationship to terrorism - contrary to the government's claim at the time.

Later, as Anita Ramasastry has noted in a column for this site, even an office of the government itself (though not the Attorney General) admitted the detentions were wrongful. In the end,1,200 people were detained. Over 760 non-citizens were held on immigration charges; others were held as material witnesses or on criminal charges unrelated to the Sept. 11 attacks. Out of all of these, there has not been even one single 9-11-related conviction.

To take another example, the Administration does not always provide truthful information about its current policies and practices. For example, Attorney General Ashcroft assured the public that a controversial provision of the USA Patriot Act had never been used - then neglected to inform the public when that very provision was invoked just a few weeks later. (This was revealed last week by Federal Bureau of Investigation documents turned over to civil liberties organizations including the American Civil Liberties Union.)

Certainly, in light of intense public interest, it was deceptive for Ashcroft to fail to update his assurance to the public when it became factually false. How can the public fairly evaluate the USA Patriot Act, when it does not even know if or how it is being used?

The Justice Department has also been deceptive in claiming that the USA Patriot is being used, as intended, to combat terrorism. It's not true - as we are only now, finally, learning.

In fact, the Act, and similar Executive Orders, are often being deployed in ordinary criminal cases. As a September 27, 2003 New York Times article, based on a high level internal DOJ report, detailed, there have been literally hundreds of non-terrorism cases for which the Patriot Act had been used.

The Treasury Department, for instance, has used the Act to prosecute financial transactions in casinos, storefront check-cashing schemes and auto dealers. Now it wants to expand it to cover home purchases as well! Meanwhile, the FBI has used Act provisions in a political corruption probe involving a Las Vegas girlie bar. And the Justice Department reported to the House Judiciary Committee last year that it used the new law in probes of credit-card fraud, theft from a bank account and a kidnapping.

It's true that the American public are willing to give up at least some rights, for some amount of time, if it is truly necessary to combat terrorism. It is an abuse of trust to use that mandate in situations totally unconnected to terrorism.

But that's exactly what our government has done. In doing so, it has not only violated the public trust as to how the broad powers granted in the Act would be used, but also betrayed Ignatieff's warning that only transparency and openness can preserve freedom in an age of terrorism.

The Hardest Question of All, For Ignatieff: Is Torture Ever Permissible?

Fittingly, Ignatieff ends his book with a discussion of torture, what he calls "probably the hardest case in the ethics of the lesser evil." Here, Ignatieff lays down an absolute prohibition, stating that liberal democracy's very history and identity is tied up in an absolute prohibition of torture.

Why? Because this type of government resists any unlimited use of public authority against people, and torture is the most unlimited exercise of power by one person over another imaginable. And because government torture expresses the government's ultimate view that humans are expendable. This view is antithetical to the spirit of any constitutional society, whose fundamental core belief in that liberty and freedom, not violence and coercion, ought to be the basis of civil society.

The United Nations Convention Against Torture, to which all liberal democracies, including the US, are signatories, forbids torture under any circumstances. It makes clear, then, that this mandate applies even in conditions of national emergency. And in the U.S., in 1994, Congress adopted an anti-torture law that made it a crime for Americans abroad acting under U.S. authority to "inflict severe physical or mental pain."

Ignatieff argues that if a democracy wishes to keep physical torture out of its interrogation rooms, it must grant detainees access to legal counsel and the possibility of judicial review. While it may compromise interrogations if detainees secure access to counsel immediately, they must have access within a short period of time. And at all times, the identities and whereabouts of detainees must be available to judges and legislators.

As to Torture, the Bush Administration Fails to Full Even Ignatieff's Modest Requirements

Again, we see the Bush administration miles away from even these moderate prescriptions. A newly uncovered set of memos on the purported legality of torture has shown how far President Bush may be taking us away from the basic values of our society.

An August 2002 DOJ memo obtained by the Washington Post, states that the Justice Department told the White House that torturing suspected terrorists held abroad "may be justified," and that international rules against torture which the U.S. has signed "may be unconstitutional if applied to interrogations" in the terror war.

(Incidentally, Jay S. Bybee, the government lawyer who drafted this memo arguing that the president's power to use torture to obtain information from suspected terrorists is almost unlimited, was recently confirmed by the Senate for a seat on the United States Court of Appeals for the Ninth Circuit)

In an even more alarming development, another leaked document -- a March 6, 2003 draft report prepared by Pentagon lawyers -- lays out unconvincingly narrow definitions of what counts as torture, and suggests arguments why U.S. government agents who torture prisoners could not be prosecuted. It claims that, "Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."

This kind of reasoning is terrifying and insane: Knowing one is causing severe pain is the very definition of torture. Whether the torturer actively wants his victim to be in pain, or simply doesn't mind it, is beside the point.

This is a long way from Ignatieff's calls for toleration and use of a lesser evil approach. And, although a few documents released this week seem to indicate that President Bush did not directly order the torture of prisoners, they do reveal the broad climate of permissiveness that led to frightening actions depicted in the Abu Ghraib photos.

Can Congress Restore Some of Our Civil Liberties?

If the executive is overreaching, can Congress fight back? The answer is yes - and it is. Several federal legislative initiatives, such as the Civil Liberties Restoration Act (CLRA), have been introduced recently, to address a range of rights violations that occurred in the aftermath of September 11.

The CLRA, in particular, would restore many of the due process rights that have been curtailed since September 11. It would also allow judges to make fair and individual decisions. Under the law, if enacted, the judicial process for immigrants would be under the supervision of an independent immigration court system. In addition, the blanket closure of deportation hearings would be replaced by a case-by-case determination as to whether such hearings should be open.

The bill does not outright disallow the Administration's tactic of enforcing immigration law rigorously as a way to try to combat terrorism - so it won't entirely please civil libertarians. But it does make sure, at least, that in the midst of rigid immigration enforcement, individual cases - and injustices - won't be needlessly kept secret, and needlessly immune from judicial review. The bill thus seems to reflect the type of moderate stance Ignatieff counsels.

In the end, Ignatieff's book reminds us that we need to return to the lessons of the Founding Fathers, who knew that the most critical moments for upholding our Constitution are those when it is most at risk. Ignatieff does not set a particularly high bar for our society to honor the Constitution; to the contrary, he would allow significant infringements on civil liberties. Whether he is right to take this position, is debatable.

What is incredible, though, is that the Administration cannot hurdle even the very low bar Ignatieff has set.


Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.

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