THE TRAGIC AND UNBEARABLE EVENTS OF September 21 have united Americans and much of the world as they have not been united for many years. The Bush administration has a unique opportunity to create effective domestic and international structures to deal not only with terrorism but with the other twenty-first-century threats to national and international security.
To do so, the administration will need to maintain its resoluteness but also change its fundamental approach in relating to the rest of the world. Before the terrorist attacks, the United States was telling other countries that it would do what it wanted to do and that they could like it or not and cooperate or not, as they chose. Now we are demanding that they follow our lead and actively back American counterterrorism efforts. At least the administration recognizes that it needs the help and cooperation of other states; but it still does not understand that, even in the face of this tragedy, support over the long run cannot be commanded. We must earn the right to lead by showing that we care about the interests and views of others and are prepared to work together to craft solutions that respond to others' perception of threats as well as to our own.
Initial responses from around the world have been encouraging. The North Atlantic Treaty Organization invoked Article V for the first time in its history. Many other countries, including China and Russia, condemned the terrorist acts--as did most nations in the Arab world. Pakistan pledged its cooperation and began to press the Taliban. But these nations will not support continuing action unless they see our venture as their fight as well and are given a role in determining what is done. In order to ensure international support, we need to use existing institutions and build on previous agreements.
In my view, the key to building such a worldwide coalition is to call upon the United Nations Security Council to handle this crisis--and to order all nations to comply with its directives any time it determines that there is a threat to international peace and security. This so-called Chapter VII authority was invoked with the blessing of George H.W. Bush in both the Gulf War and Somalia. Yet for reasons that are not clear, his son's administration has downplayed the possible role of the Security Council.
There are a number of significant advantages to relying on the Security Council. First, we would make it clear to other nations that we are acting in accordance with the basic principles and procedures of international law. Second, we would create a framework that allows other states to justify their support for our policies: They would not be yielding to American pressure but fulfilling binding international legal obligations. Third, we would give other states confidence that they will be consulted about what we do instead of blindly committing themselves to follow us.
The UN Charter lays out the steps that should be taken to deal with terrorists and states that help them. The relevant provisions of Chapter VII are these:
ARTICLE 39. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security ...
ARTICLE 41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
ARTICLE 42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
The Security Council has, in fact, once before acted under Chapter VII to impose an embargo on Afghanistan. In October 1999, the Security Council--asserting that "the suppression of international terrorism is essential for the maintenance of international peace and security" (and thus invoking its Chapter VII authority)--strongly condemned "the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts." Specifically condemning the Taliban for providing a haven for Osama bin Laden, the council went on to note that the failure of the Taliban authorities to respond constitutes a threat to international peace and security. In addition to demanding that the Taliban turn bin Laden over to U.S. authorities, it ordered all member states to prohibit flights to and from Afghanistan and to seize all of the economic assets of the Taliban if Afghanistan refused to comply with the UN Charter.
Thus, the council has already moved toward authorizing the use of military force. The United States should make it clear that it wants the Security Council to respond to the events of September 11 by demanding the immediate surrender of bin Laden, And, barring that surrender, we should ask the council to require all member states to observe a total embargo on Afghanistan.
In the meantime, we should develop military plans to seize bin Laden. This may take far longer than it will to go through these steps with the United Nations. The Bush administration seems to understand that air strikes with cruise missiles will do no good. If we spill innocent blood in a mindless technological attack, we will lose the moral high ground and the support we need in the world.
When our plans for military operations are in place, we should ask the Security Council to authorize the use of military force under the direction of the United States. We then can ask other countries to cooperate by providing bases and overflight rights, if not military forces. We are much more likely to achieve compliance if we act pursuant to a UN Security Council resolution.
COMMAND AND CONTROL
The advantages of proceeding this way are abundantly clear. So why, as I write this, has the Bush administration made only vague references to its desire for UN support--and why has it not asked the council to invoke its Chapter VII powers? One possible explanation is that Bush and company do not believe that they can get the council's backing; perhaps they anticipate that Russia or China would veto any resolution on the use of force. But it's likely that neither country would block such a resolution. Both Russia and China supported the earlier Chapter VII resolutions on Afghanistan. Both nations, moreover, view terrorism by Islamic fundamentalists as a great threat to their own security. Russia sees the war in Chechnya as another manifestation of this phenomenon, and China fears that the large Muslim populations within its borders will be lured into fanaticism and turn to terror.
Even if a resolution authorizing the use of force were not approved, the United States still stands to gain by approaching the Security Council: It would demonstrate our commitment to international law, which permits the use of force in self-defense without the council's approval. If the council fails to act, I believe we would have the legal and moral right to proceed, alongside those countries that are willing to support us, with a sensible plan for military action.
Recognizing that council support would carry a requirement to consult with other nations and with the council itself, the Bush administration is likely choosing to avoid going to the council because it is reluctant to yield in its insistence on unilateralism. It wants to have the backing of other countries--but without being subject to their influence or control. But leaders of other democratic nations know that they may invite terrorist attacks themselves if they blindly provide assistance to the United States and have no say in what is done--especially if the actions lack a clear foundation in international law. And Middle East leaders fear the wrath of their people and terrorist attacks on their own soil if they get behind us without the cover of a UN Security Council resolution.
WE SHOULD USE OTHER EXISTING INTERNATIONAL mechanisms in addition to the UN Security Council. One promising vehicle is the Community of Democracies, created with little fanfare at a meeting in Warsaw in June 2000. At that meeting, more than 100 ministers from countries on the path to democracy endorsed the Warsaw Declaration, a commitment that their governments will "resolve to strengthen cooperation to face the transnational challenges to democracy, such as state-sponsored, cross-border and other forms of terrorism ... and to do so in accordance with respect for human rights of all persons and for the norms of international law."
Terrorism is a particular threat to democratic states. In light of this, the Bush administration should call a meeting among the convening foreign ministers of the Community of Democracies--including Chile, the Czech Republic, India, Korea, Mali, Mexico, Poland, Portugal, South Africa, and the United States--when the UN General Assembly holds its delayed opening session this fall. In fact, the two key leaders in the creation of the Community of Democracies, former Secretary of State Madeleine Albright and former Polish Foreign Minister Bronislaw Geremek have urged the convening foreign ministers to build on the Warsaw Declaration. Following this meeting, it might be appropriate to call another--this time with all 110 countries that are part of the Community of Democracies--in order to adopt a specific action plan to complement the work of the United Nations.
SECURITY AND LIBERTY
If the challenge abroad is to create an effective coalition that builds on the structures of the international community and relies on the rule of law, the challenge at home is to fight terrorism without undermining the basic rights and liberties of all who live within our borders. This will not be easy, and the early signs are not good.
American history is full of sorry tales of our abandoning basic values in times of war and crisis. In World War I, Congress passed the Alien and Sedition Acts, which sought to curb public debate about the war. World War II saw the internment of Japanese Americans. The Cold War produced the Smith Act and other manifestations of McCarthyism. Anti-Vietnam War protests and the civil-rights movement led to a host of intelligence-agency abuses, including the infamous COINTELPRO (counterintelligence programs), under which the FBI manipulated and discredited lawful political activity. After the Oklahoma City bombing, Congress rushed to enact an antiterrorism statute that severely limited habeas corpus review in the federal courts, provided for the use of secret evidence against aliens who seek asylum, and prohibited aid to groups labeled terrorist by the U.S. government--with no hearings or opportunity for challenge.
Not only do war and crisis bring inappropriate intrusions into our liberty, but we are agonizingly slow in making amends when the crisis passes. We have only recently apologized to Japanese Americans for their internment in World War II. After the revelation of intelligence abuses in the 1970s, Congress debated for several years about legislation that would have placed limits on the investigative authority of the FBI, the CIA, and other intelligence agencies. In the end, no such legislation was enacted.
U.S. intelligence agencies would like us to believe that Congress has imposed restrictions on them that have in some way contributed to the failure to prevent the recent catastrophe. That is simply not the case. The only limits that exist are in directives issued by the U.S. president or by the directors of the FBI and CIA. The assassination ban, for example, was first placed by President Gerald Ford. The limits on CIA recruitment of human-rights violators are outlined in an order by the agency's director. Both of these restrictions are subject to interpretation or repeal within the executive branch, and neither was intended to apply to terrorists. The legislation that Congress has enacted deals with areas of privacy that are protected by the Fourth Amendment in which law-enforcement agencies need specific authority to gather information.
I, among many others, have long warned that a serious terrorist incident in the United States would panic Congress into passing anything that was labeled antiterrorist. Thus, it is no surprise to me that the unspeakable acts committed on September 11 have brought forth calls for sweeping legislation. Two days after the attacks, the Senate--without debate--passed amendments to the existing wiretap laws; and within a week, there was a bill circulating on Capitol Hill "to combat terrorism and defend the Nation against terrorist acts, and for other purposes." The bill includes the wish list of law-enforcement and intelligence agencies in areas as diverse as intelligence gathering, immigration, and criminal justice.
Some changes in legislation may well be justified in light of the terrorist acts. But we need a full public explanation from the executive branch of what each change means and why it is necessary. Then, we should take time to consider the proposals and examine their consequences, with an eye toward balancing our freedoms with our security. Next, congressional committees should conduct full public hearings with witnesses drawn not only from the government but from universities, industry, and advocacy groups. The hearings would need to be followed by public markups, committee reports, and full floor debate. Even with a complete process, we may end up granting law-enforcement and intelligence agencies powers that they do not need and that could be misused in the future; but at least civil libertarians and others who care about our freedoms will have a chance to argue for precision.
September 11 will change our nation and our world in ways that we are only on the verge of understanding, but that need not and must not change our commitment to preserve our liberty as well as our security.
RELATED ARTICLE: The Liberties We Defend
A WEEK AFTER THE TERRIBLE events of September 11, the Bush administration's proposed anti-terrorism legislation appeared before Congress. Clearly, there had not been time to draft something new. The bill consisted of provisions that had long rested in the files of the law-enforcement and intelligence agencies waiting for the right moment. But even Attorney General John Ashcroft, who as a senator had expressed great skepticism about many of these items, now insisted that Congress act within a week.
The concern was not limited to liberals. Four key Republicans on the House Judiciary Committee wrote to their chairman questioning the rush to mark up a bill after only one hearing with the attorney general. "What we must avoid," they declared, "is the impulse to hastily approve wholesale changes to search and seizure, surveillance, immigration and other laws in an understandable but misguided attempt to thwart future attacks."
Here are some of the bill's most egregious provisions:
ELECTRONIC SURVEILLANCE This section vastly expands the authority of the government to gain information about e-marl transmissions without a search warrant. It also permits the government to use in criminal trials information that foreign governments gather about American citizens abroad in a manner inconsistent with the Fourth Amendment. And by protecting the source from disclosure, it effectively denies defendants the right to challenge the allegation.
FOREIGN-INTELLIGENCE SURVEILLANCE A statute already on the books authorizes the government to conduct electronic surveillance and secret physical searches in the United States under broader standards than those that apply to criminal wiretaps when these activities are directed at foreign powers and their agents, including American citizens. The Foreign Intelligence Surveillance Act (FISA) of 1978 authorized the government to conduct surveillance in areas that the Supreme Court had held were protected by the Fourth Amendment. The Court's opinion suggested that the warrant requirements of the Fourth Amendment might be different in national-security matters; Congress and the administration worked together, with the active involvement of outside groups and scholars, over a period of several years to craft the careful compromise.
At the heart of FISA was a trade-off: Congress would authorize electronic surveillance of foreign powers and their agents within the United States under a standard less stringent than that required for other national-security wiretaps. (For example, it authorized the government never to tell the targets that their conversations were intercepted.) In return, the administration accepted greater judicial involvement and oversight of the process and a wall to ensure that investigators did not use these procedures to gather information for criminal prosecutions or surveillance of ordinary citizens.
The Bush administration's bill would alter FISA to permit searches for extended periods without new court orders and to permit access to many other records using EISA. These proposals need to be understood in light of this history. Contrary to Attorney General Ashcroft's pose, it is not an anomaly that the government has to go back to court frequently for authority to continue surveillance of a private person lawfully residing in the United States. Since the individual will never be told of the surveillance or have an opportunity to have the surveillance records purged, it is important that a judge check regularly to be sure that the government's suspicion that the person was acting as the agent of a foreign power was reasonable and that the surveillance was producing foreign-intelligence information while minimizing the collection of other material. This section would also repeal a long-standing law that protects the confidentiality of educational records.
CRIMINAL JUSTICE The bill's criminal-justice section contains many provisions that seem to be unobjectionable, such as eliminating the statute of limitations for terrorist crimes. But it contains many others that raise serious issues and illustrate the need for careful deliberation. For example, an apparently innocuous provision makes it a crime to harbor terrorists. Who could be against that? Only when you look closely at the proposed language do you find that the government has carefully chosen to create this prohibition by inserting terrorism crimes into the only existing antiharboring statute, under which the threshold of proof is that the alleged harborer "should have known" that he was doing so. The simple, straightforward list of what crimes constitute terrorism seems unobjectionable until you notice that there is no requirement that these actions are taken to coerce the government. Also buried in the list of crimes is the offense of disclosing the name of a covert agent. This could be committed by a reporter who had no access to classified information. It opens the door to further assaults on free speech.
Many of the provisions in the legislation do not limit themselves to terrorist offenses but rather cover all criminal proceedings. This includes the proposal to permit the government to delay informing an American citizen that her house had been searched by the authorities in clear violation of the knock-and-notice requirements of the Fourth Amendment. In another instance, the proposal seems limited to terrorism but includes a vague clause referring to a "matter of national security." That could be interpreted to include a trip to Cuba or the publication of information that the government deems classified. One provision would abandon the principle of grand-jury secrecy by permitting information obtained under compulsion by a grand jury to be shared with intelligence organizations.
EMERGENCY AUTHORIZATIONS The most striking provision in this section would permit the secretary of state, in the interest of fighting terrorism, to waive all of the restrictions that Congress has imposed on the granting of aid to other governments, including the prohibition of assistance to countries that engage in systematic human-rights violations.
FINANCIAL INFRASTRUCTURE The most dangerous proposal here would permit the government to release tax returns and disclose other private tax information to any federal agency involved in responding to a terrorist attack.
IMMIGRATION Bush's measure contains sweeping provisions that broaden the antiterrorism bill enacted after the Oklahoma City bombing, leaving lawful immigrants with reduced due-process protections (see "How Not to Fight Terrorism," by David Cole, on page 30).
Each reading of the bill reveals new problems buried in the text. As a broad coalition of civil-liberties organizations that came together on September 20 declared in a joint statement:
This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks. We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life.... We should resist the temptation to enact proposals in the mistaken belief that anything that may be called antiterrorist will necessarily provide greater security.... We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans.
--MORTON H. HALPERIN
RELATED ARTICLE: How Not to Fight Terrorism
THE CALAMITOUS ATTACKS OF September 11 have imposed on Americans a sense of vulnerability that we've been privileged to avoid for a long time. But as we respond to the threat of terrorism in our midst, and as the nation takes up what President Bush has called a fight for our freedoms, we must maintain our commitments to those freedoms at home. We must be careful not to overreact and should insist that any response be measured and effective.
Unfortunately, the antiterrorism bill proposed by the Bush administration utterly fails this test. Its worst provisions are aimed at the most vulnerable in our society: immigrants who have no voice in the political process. The Bush bill would make aliens deportable not for terrorist activity but for peaceful and nonviolent associational activity in support of any group that ever engaged in a violent act, without any showing that the alien's support furthered illegal ends. It would authorize the Immigration and Naturalization Service to detain immigrants indefinitely on the attorney general's say-so, even when they have a legal right to live here permanently and cannot be deported. And it would resurrect the doctrine of ideological exclusion by allowing aliens to be denied entry for their speech.
This is not the first time that Americans have responded to fear by targeting immigrants and treating them as suspect because of their group identities or beliefs rather than their individual conduct. In World War I, we imprisoned antiwar dissidents, mostly immigrants. In World War II, we interned 120,000 persons, not because of individualized determinations that they posed a threat to national security or the war effort but solely on account of their Japanese ancestry. And in the McCarthy era, we made it a crime and a deportable offense even to be a member of the Communist Party. That history should caution us to ask carefully whether we have responded today in ways that avoid overreaction and are measured to achieve security without needlessly sacrificing liberty.
Current law gives the INS substantial power to address terrorism. It allows the agency to deny entry to, detain, or deport any alien who has engaged in or supported any kind of terrorist activity. But that's apparently not enough for the Bush administration: It suggests expanding its authority to permit deportation of immigrants who have never engaged in or supported an act of violence in their life. They could be expelled from the country solely on the basis of their associational activity.
Under the Bush proposal, an alien who sent coloring books to a day-care center run by an organization that at some time was involved in armed struggle would be deportable as a terrorist, even if she could show that the coloring books were used only by three-year-olds. Indeed, the law extends to those who seek to support a group in the interest of countering terrorism. Thus, an immigrant who offered the IRA his services as a negotiator in the hope of furthering the peace process in Great Britain and forestalling further violence would be deportable as a terrorist.
Guilt by association, the Supreme Court has ruled, violates the First and the Fifth Amendments. In words ironically appropriate in light of today's climate, the Court has rejected it as "alien to the traditions of a free society and the First Amendment itself." As a strategic matter, guilt by association is also counterproductive, because it leads government officials to waste resources targeting the innocent and alienates whole communities of people who might have information about true threats that lurk among us.
The Bush bill would also authorize the attorney general to lock up any alien who he "certifies" might engage in terrorist activity, which is so broadly defined that it includes virtually any use or threat to use a weapon, as well as political associations. The legislation mandates detention of individuals who pose no threat to national security or risk of flight. And the administration is seeking to insulate the attorney general's certification from any meaningful court review--in short, to suspend the writ of habeas corpus and legalize unilateral executive detention.
Finally, the Bush' bill would resurrect the practice of denying visas to foreigners because of their speech. It proposes to authorize the secretary of state to deny entry to anyone who endorses a terrorist organization--again, so broadly defined that it would include the IRA, the African National Congress, and the opposition forces in Afghanistan. In 1990, Congress repealed McCarthy-era immigration provisions that similarly barred entry based on ideas, a practice wholly inconsistent with our commitments to the free exchange of ideas. Yet here we go again.
These provisions are highly unlikely to make us safer. And they sacrifice the very principles we are fighting for. As Justice Louis Brandeis wrote nearly 75 years ago, the framers of our Constitution knew "that fear breeds repression; that repression breeds hate; and that hate menaces stable government." Freedom and security need not be traded off against each other. Maintaining our freedoms is itself critical to maintaining our security.
DAVID COLE is a professor at Georgetown University Law Center and a lawyer with the Center for Constitutional Rights.
Formerly director of policy planning at the Department of State (1998-2001), MORTON H. HALPERIN is a senior fellow at the Council on Foreign Relations. He worked for many years for the ACLU, where he directed the Center for National Security Studies.
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|Author:||Halperin, Morton; Cole, David|
|Publication:||The American Prospect|
|Date:||Oct 22, 2001|
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