Here's a notable excerpt from the ACLU's report.
"Ten years ago, we could not have imagined our country would engage in systematic policies of torture and targeted killing, extraordinary rendition and warrantless wiretaps, military commissions and indefinite detention, political surveillance and religious discrimination. Not only were these policies completely at odds with our values, but by engaging in them, we strained relations with our allies, handed a propaganda tool to our enemies, undermined the trust of communities whose cooperation is essential in the fight against terrorism, and diverted scarce law enforcement resources. Some of these policies have been stopped. Torture and extraordinary rendition are no longer officially condoned. But most other policies—indefinite detention, targeted killing, trial by military commissions, warrantless surveillance, and racial profiling—remain core elements of our national security strategy today."
We'll be starting shortly, but for now I want to hear what you think. Have America's leaders abused fear to implement unwarranted security measures? Or is the threat of terrorism in the "post-9/11 world" so great that new approaches are necessary?
I've often heard the argument that in a world of increased danger and terrorism, we must sacrifice some of our rights so we can be adequately protected. In today's world, for example, wiretapping citizens is permissible if it "stops another 9/11."
Should civil liberties fluctuate? What do you think?
The ACLU report tackles that question:
In a much-cited lecture delivered near the end of the Cold War, the late Supreme Court Justice William J. Brennan, Jr., reflected on “the shabby treatment civil liberties have received in the United States during times of war and perceived threats to its national security.” Justice Brennan noted the cyclical nature of the nation’s response to traumatic events: after each crisis had abated, the country had “remorsefully realized that the abrogation of civil liberties was unnecessary.”
We're going to begin the chat with Jameel Jaffer. Thanks for joining us today, Jameel.
Readers can still submit questions by using the comment form above.
Hello, all. Looking forward to the discussion. And thanks to Stuart and the Globe & Mail for hosting.
The report is our effort to understand the way that counterterrorism policy is transforming American democracy. I think a lot of people expected that the most controversial national security policies -- targeted killing, warrantless wiretapping, indefinite detention -- would be retired by the Obama administration. They haven't been retired. We question whether those policies can be squared with a commitment to constitutional democracy.
It's been 10 years since the 9/11 attacks and several years for the Obama administration.
How different are the Obama administration’s national security policies from those that were introduced by President Bush?
It's really remarkable how many of the Bush administration's national security policies have been continued by the Obama administration. President Obama endorsed a statute that allows for warrantless wiretapping of Americans' international phone calls and emails. (And his administration is defending that statute in court.) He has expanded the "targeted killing" program. He has defended the indefinite detention of prisoners apprehended in the course of the "war on terror" -- even prisoners apprehended far from any conventional battlefield. There's disappointingly little distance between the Obama administration's national security policies and those of Bush administration during its second term.
I don't want to suggest that there's *no* difference between the two administration's, of course. One big difference is that the Obama administration has categorically disavowed torture; the Bush administration expressly approved it.
You mentioned the wiretapping case in currently in the courts. To give readers some real-world examples of the threats to civil liberty, can you give a few more examples of cases relating to national security and civil liberties are in the courts now?
Sure, Stuart. The truth is that virtually every aspect of the war on terror is now being challenged in the courts. Prisoners held at Guantanamo are challenging the lawfulness of their detention. People who were imprisoned(and tortured) as enemy combatants have brought lawsuits against the Bush-era officials who authorized their treatment. (The ACLU represents Jose Padilla, for example, who was seized at O'Hare airport in Chicago and then imprisoned as an enemy combatant --- without charge or trial -- for several years.) Civil society groups have brought several different challenges to government surveillance.
Here's a question from a reader, Jameel.
The fact that all of these issues are in the courts, though, doesn't mean that the courts are actually ruling on the lawfulness of counterterrorism policy. Several victims of the CIA's torture program have sued the officials who signed off on their torture, but no victim has actually been afforded his day in court. All of the cases have been dismissed because of something called the "state secrets" privilege. The theory behind that privilege is that there are some issues that are simply too sensitive to be dealt with by the courts.
Well, let me preface my answer to that question -- the question about Canadian society -- with a caveat: I work for the American Civil Liberties Union, and the ACLU doesn't ordinarily take positions on the policies of governments other than the American government.
But I'll answer the question in my personal capacity.
I think that the transformations we're seeing in the United States are taking place in other democratic countries as well, including Canada. Citizens are giving more and more power to their governments, and the exercise of this power is not supervised as it ought to be. Public oversight is almost non-existent, because many of the most crucial decisions about national security policy are made behind closed doors. And judicial oversight is weak because judges tend to defer to government officials on issues relating to security; sometimes that deference is required by law. The result is that government officials have increasingly sweeping power, and the exercise of that power is subject to less and less oversight. This is happening in the United States, but it's happening in other democracies as well. Perhaps more slowly, but just as surely.
One of my colleagues wrote a report about surveillance a few years ago; he called the report "Bigger Monster, Weaker Chains." That's pretty much my view of counterterrorism policy more generally.
A common theme here seems to be that the threat of terrorism justifies sacrificing some civil liberties to ensure we're all safe. Shouldn't we allow wire tapping if it can prevent another terrorist attack?
To be clear, terrorism is a real threat, and there is a need for thoughtful counterterrorism policy. The problem is that many of the counterterrorism policies we've adopted over the last decade have undermined our democratic freedoms without making us any safer.
So should our civil liberties fluctuate if doing so truly makes us safer? Or should they be fixed and unchanging?
Re wiretapping: Of course I approve of wiretapping terrorists. One purpose of judicial oversight, though, is to ensure that the people who're getting wiretapping are in fact terrorists. The warrantless wiretapping program that the Bush administration authorized in 2001 was meant to get rid of that crucial judicial oversight. And that's one of the reasons we opposed it. (There were other reasons as well: the program violated a federal statute, for example.)
(Sorry for the typos in the previous post. I should really read these things over before hitting send.)
We're getting some great reader questions now. If you have a question for Mr. Jaffer, post it above.
To Louise's comment: I don't think many people love being at war. It's easier to be enthusiastic about war, though, if the war is taking place far away and is being fought by robots (e.g. drones) or
other people's kids.
Here's another reader question.
I think PatrickBay makes a very important point. A great deal of what democratic governments do in the name of national security is done in secret. That secrecy is often misused to protect officials from criticism or embarrassment, or to cover up waste, fraud, or illegality. We too often forget that government transparency serves a national security purpose: It ensures that bad policies are subject to public criticism and it ensures that incompetent or corrupt officials are held accountable for their conduct in office. Secrecy lets incompetence and corruption flourish. And, obviously, neither incompetence nor corruption makes any of us more secure.
Here's another reader question for you to consider Jameel.
Let me make another obvious point: Many policies introduced in the name of security don't in fact make us safer. On our website, you can read emails exchanged by FBI personnel who were stationed at Guantanamo in 2002. They complain over and over again that the use of torture is not just ineffective but counterproductive.
The problem with allowing government agents to lie about their identity or to infiltrate religious and political groups, etc. is that it undermines social trust. None of us wants to live in a society in which we have to ask ourselves whether the "friend" who has invited us to dinner is really our friend (rather than an undercover police officer), or whether the new member of our book club is really interested in reading (say) Chomsky (rather than just monitoring what the rest of us say about Chomsky's books). I'm not sure I'm *categorically* opposed to government agents misrepresenting their identities, but I certainly think that kind of conduct should be closely supervised by the public and the courts.
I guess the link didn't come through, but the op-ed is called "Honoring Those Who Said No." I wrote it with Larry Siems.
I'll let you answer PatrickBay's follow-up question if you can, then we'll wrap up the discussion.
The Wikileaks issue is too complicated for me to address in my remaining time, but I do think it's clear that there are both social benefits and social costs to a regime of radical transparency. Just as there are social benefits and social costs to a regime of radical secrecy. But right now I think we need more transparency. We've accepted far too much secrecy, and that has made us both less free and less secure.
Yes, thanks for joining us. It's been an interesting discussion. Where should readers go to get more information about your work and your report?
It's been a pleasure. Your readers can follow the ACLU's work -- and I hope they will! -- at www.aclu.org. Thanks, all.
Welcome to today's live discussion. I'll be taking reader questions for Mr. Jaffer throughout the chat. What do you want to know about the state of civil liberties and human rights – in America or elsewhere?
