US: Cherished principles of individual freedom and government openness have been lost in the US war on terrorism, suggests Michael McLintock.
They were extraordinary measures taken at an extraordinary time. The United States's response to the September 11th attacks included practical, principled measures to heighten security and to track down accomplices of the attackers before they, too, could strike terror on US soil. This response was matched by other measures that disregarded common sense and contradicted the core values and principles in which the US most takes pride.
In A Year of Loss: Re-examining Civil Liberties since September 11th, the Lawyers Committee for Human Rights examines the emergency measures and the prospects for the permanent erosion of fundamental human rights protection in US law and policy. At stake are principles of open government, privacy, freedom from arbitrary detention and the freedoms of expression, association, and belief - and a world in which the US declines to champion the highest possible standards of human rights.
After the attacks, a mantle of secrecy enveloped the executive branch of the US government. Information was withheld from the public, the Congress, and the courts. The principle of open government - and the checks and balances between the executive, judicial and legislative powers - was an early casualty. Some of the emergency measures were expressly designed to shield government action from public scrutiny and criticism. Executive orders and regulations rapidly closed off access to government information even on matters unrelated to security.
The rights to privacy and due process were eroded by new domestic spying powers allowing federal officers secretly to access personal information in the home and in electronic databases. They exposed the everyday choices of what to read or watch or say to government scrutiny - every book or video checked out of the local library or video store, every website called up for a school project, every purchase over the internet, can now become a part of an FBI profile on any citizen's ideological soundness.
Freedom of assembly, association and belief were also at risk under new regulations allowing intimidating surveillance and infiltration of any religious, civic or political organisation. A new government programme dubbed Operation TIPS (Terrorist Information Prevention System) also promised to recruit citizens as informants across the country - despite bipartisan opposition in the legislative branch.
Freedom from discrimination is also newly under threat. Thousands of people who are the same race, religion, or national origin of the hijackers were swept up in round-ups or called in for questioning. Citizens and non-citizens, green card holders and temporary visitors all fell into the net, although the majority held for long periods were immigrants whose visa status was questioned. Their names and even their numbers were concealed, while immigration proceedings concerning those designated "special cases" were secret. Although both practices have been found unconstitutional by the courts, these rulings have been appealed and the secrecy continues.
In November 2001, President Bush issued an executive order that created special military commissions to try non-citizen suspects without even the safeguards of US military justice. The commissions are empowered to impose the death penalty without appeal to any regularly constituted court. Widespread criticism of the measure across the political spectrum may underlie the decision to date not to present cases before these military courts - but the system is available.
Almost 600 men from at least 43 countries, most of them detained in the war in Afghanistan, are being held at a US military base in Guantanamo, Cuba - in a status one US official described as "the legal equivalent of outer space". In denying them the protection of the Geneva Conventions - offering to abide only by its "principles" - the US has refused to provide the detainees any form of hearing before a judicial body, military or civilian.
Two US citizens are being held without charge or trial in military custody inside the United States. The executive maintained US citizens and non-citizens can be held indefinitely without charge if it has identified them as "enemy combatants" - and measures by the courts to test the legality of these arrests have been contested.
The recalibration of the balance of rights and security to address the emergency of September 11th and the threat of further attacks requires deliberation and adjustment before being made permanent. But permanent realignments of the balance between the judiciary, the legislature and the executive are under way. A year after the attacks, this realignment has proceeded quietly but inexorably to change the political landscape of the United States.
The collateral damage of the US emergency has been global in scope - in particular, in the battering taken by international human rights standards and even the Geneva Conventions. US leaders setting aside fundamental constitutional rights and international standards in the name of expediency, read as national security, have an eerie familiarity and set a poor example. Liberia's Charles Taylor leapt to declare common cause with the US and to apply the new security logic to his own acts - declaring an imprisoned newspaper editor an "unlawful combatant", and so outside the reach of habeas corpus. Other foreign leaders have pointed to their own military trials of civilians as a model the US can now expect to applaud.
The US has become an increasingly strident opponent of international measures to protect human rights and to fight impunity for genocide, war crimes and crimes against humanity. The rolling interventions intended to undermine the new International Criminal Court, like its unsuccessful diplomatic efforts to scupper the optional protocol to the Convention Against Torture - which facilitates inspections of detention facilities - do not augur well. The kind of future rights-respecting world order that would best provide a bulwark against just the kind of crimes against humanity committed on that September morning a year ago may need to be built despite and not because of US leadership.
Being cast as the bad example for its domestic human rights record is a role the US had largely shaken in recent decades, despite the flaws of its criminal justice system. The US has also been an important voice for the highest international standards abroad - with some exceptions. By departing from the highest possible standards at home, the US can be expected to lose its claim to moral influence abroad - should a course correction be long in coming.
How permanent are the changes in US law and practice at home and abroad? Will amendments to law and practice be repealed in time or will they become permanent features of the US - and role models for others? These are questions to be answered.
Michael McClintock is the director of programme at the Lawyers Committee for Human Rights, an international human rights organisation based in New York. He is the principal editor of its report, A Year of Loss, which is available online at www.lchr.org