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Five Years Later – What Does Liberty Mean?

By Rachel King
September 11, 2006

As the anniversary of the 9/11 attacks approaches, we are being bombarded with news programs discussing how our lives have changed in the last five years. Commentators expound on how our civil liberties have been diminished, even as President Bush insists that he needs yet more expanded wiretapping authority. American soldiers are still in Iraq, with no signs of withdrawing any time soon. Osama bin Laden remains at large, and we continue fighting a war on terror, even though we are not entirely sure who we are fighting.

Underlying all of this confusion is a question for which we have not yet formulated an answer as a society: Is terrorism a crime or an act of war? Considering the set-up of our legal system, where we have one system for criminals and another for enemy combatants, this is an important question to answer. During the past five years, the Bush administration has consistently refused to categorize where terrorism falls and, as such, has evaded following the law.

Deciding whether to categorize the 9/11 attacks as a crime or an act of war is a difficult determination to make, but as a society we must make it. Accused criminals have certain rights under American law like the right to know the charges against them, the right to access legal counsel, the right to a trial, the right to confront the evidence against them and the right to a jury. Accused criminals also have the right to bail or at least the right to have access to an attorney if they are held in captivity.

We know that our government has been detaining people, hundreds of them, in Guantanamo Bay and in secret CIA prisons, without providing them any of these rights. The justification given for such treatment has been that these prisoners are not common criminals but terrorists with whom we are at war.

However, war prisoners also have certain rights under the Geneva Convention and International Law. They have the right to be treated decently (not tortured), have access to health care and good food, communicate with the outside and work and receive pay for their work. Typically, prisoners of war are detained until the war is over or until the detaining party decides to let them go. In the case of the “war on terrorism,” however, there is no end date in sight, which gives the Bush administration the justification to hold them indefinitely.

If prisoners of war are to be tried as “war criminals,” then they are also entitled to certain rights. First, they must be charged with a war crime. Merely fighting or killing during a war is not a war crime, as fighting and killing are what happens in war. Attacking civilian populations or engaging in genocide would be considered war crimes. Arguably, those involved with the 9/11 attacks could be prosecuted as “war criminals” because they attacked unarmed civilians. However, charging them as war criminals would involve giving them some form of trial, with some sort of justice. And while there is an international criminal court that could be used, the United States has not been a party to its creation.

The problem is that the Bush administration wants to have it both ways. In the aftermath of the 9/11 attacks, Congress, at the urging of the administration, passed a number of provisions in the USA PATRIOT Act and by way of administrative regulation that expanded criminal investigative powers. Thus, we saw expansions in the use of “secret searches,” wiretapping authority, the material witness statute and in the legal definition of “terrorism” to broadly cover a wide range of heretofore legal behavior, to name a few. It also made it possible for the Department of Justice to eavesdrop on attorney-client conversations of suspected terrorists. Most of these powers are not limited to terrorism investigations, which means that the government has now gained expanded powers to investigate and prosecute that it can use against everyone, not just terrorists.

When it comes to detaining suspected terrorists, the government doesn’t classify them as either regular criminals or war criminals. They fall into some sort of in-between category where neither type of law applies. As a result, the administration justifies holding people indefinitely without charging them with a crime, denying them access to an attorney and using torture to obtain information. Now, under pressure, the administration says it is willing to grant some of the suspects trials, but it wants trials where the accused does not have the right to look at all of the evidence or even be present during parts of the trial, thus making it impossible for that person, or his attorney, to adequately represent him.

Difficult times often make for bad laws. For example, when England was fighting the Irish who wanted freedom, it passed laws which gave the accused “terrorist” no rights, allowing the government to hold a person indefinitely, have no counsel, present no witnesses and be tried in front of a small panel of military officers. Many injustices were perpetrated against the Irish during their fight for freedom. In retrospect, it is easy to see the injustice of what was done, but at the time, the laws seemed justified.

The Bush Administration, with the assistance of Congress, has passed its own set of draconian laws, acting out of fear. The PATRIOT Act was signed into law 6 weeks after the 9/11 attacks, during a week when most members of the House of Representatives couldn’t get into their offices because of an anthrax attack. In other words, most law makers didn’t even read the legislation they passed into law.

Five years have passed. Now is the time to take a look at our laws in the light of day and decide how we should treat suspected terrorists. If we are really going to be engaged in an ongoing war on terror, we should decide what the rules are going to be, and then we should play fair. Liberty and democracy are at stake. In fighting our enemy, let’s not become our own worst enemy.

Professor Rachel King teaches at Howard University School of Law.