Document created: 1 December 2007
Air & Space Power Journal - Winter 2007
Protecting Liberty in an Age of Terror by Philip B. Heymann and Juliette N. Kayyem. MIT Press (http://www-mitpress.mit.edu), 55 Hayward Street, Cambridge, Massachusetts 02142-1493, 2005, 160 pages, $20.00 (softcover).
Authors Heymann and Kayyem seek to provide specific guidelines for appropriate application of democratic principles to the prickly aim of finding and targeting substate terrorist networks, both at home and abroad. Far from a light read, Protecting Liberty in an Age of Terror is the updated culmination of debate, discussion, research, and policy recommendations by Harvard’s Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism. Comprised of an impressive list of legal minds, mid- and cabinet-level administration officials from both political parties, and British consultants, this panel met periodically over an 18-month period to discuss “the fundamental changes in domestic and international laws and accepted practices that have occurred since 9/11” (p. 2). Although the terrain is easily political, the authors have removed all traces of partisan sentiment to let the applicable laws, treaties, and traditionally accepted practices speak for themselves. Most people agree that war against terrorists should not compromise democratic liberty; nevertheless, the devil is in the details.
The authors, directors of the Harvard project, admirably address the obligatory lightning-rod issues of torture and detainment. No circumstances warrant disregarding the “due process prohibition against actions that U.S. courts find ‘shock the conscience’ ” (p. 11), and there are no acceptable conditions allowing extradition to countries that will likely engage in torture. Substantive domestic and international precedents illuminate the blurry line between acceptable “highly coercive interrogation” (HCI) techniques and torture. Recognizing the inherent difficulty of the topic, the panel recommends that the US attorney general provide specific definitions of allowable HCI techniques, subject to congressional review and public scrutiny. Perhaps the most restrictive recommendation calls for requiring issuance of case-by-case HCI permission by a senior government official, a stipulation that may severely reduce tactical intelligence available to troops in an active combat zone.
The panel also recommends clear application of US constitutional protections to noncitizen detainees unless a specific privilege would pose a threat to national security. Aside from the debate over civil liberties, a very practical motivation underlies this recommendation as well: a state cannot demand legal protection of its citizens abroad unless that state demonstrates similar consideration. If individuals are detained within an active combat zone, then they should be afforded the right of a tribunal to review justification for such detainment; if individuals are collected in an active combat zone but detained elsewhere, then they should be afforded the widest range of Fifth Amendment rights practicable. Finally, the panel recommends strongly against collecting individuals for detainment from within a cooperative foreign sovereignty. If adopted, these recommendations will drastically change the landscape of current American detainment policy.
Other less-publicized areas of the post-9/11 civil-liberty debate involve the government’s right to obtain and use electronic data on citizens, corporations, religious and political groups, and legal aliens. The majority of the panel’s conclusions are reasonable and well articulated, but one surprising recommendation gives pause: the board argues against collection or surveillance on US soil without specific judicial warrant, as in a criminal case. Although this requirement is certainly appropriate for individual surveillance, the counterterror proceeds of sophisticated data-analysis tools should not be legally excluded if they point coincidentally to origination on US soil. It seems counterproductive to make US territory the enemy’s best communication sanctuary.
Perhaps the most structurally significant recommendation entails establishing an executive-oversight body whose sole purpose is review of the substance and application of extraordinary measures taken in times of crisis and war. Such a board would monitor, document, and evaluate the conduct and effectiveness of extraordinary measures that have the capability to erode established civil liberties. Rather than approve individual actions, the board will advise legislative and executive officials regarding the legality and effectiveness of exceptional actions undertaken in special circumstances. The panel would help both branches of government determine whether and to what extent extraordinary measures ought to continue.
Heavily legalistic and somewhat academic, this work nevertheless speaks authoritatively on the contentious clash of civil liberty with national security in extraordinary times. It often indicts policies adopted by both the executive and legislative branches in the wake of 9/11, advocating systematic and public review. Although commendably apolitical and moderate in tone, the work challenges the current administration’s opacity since “the core principle of the U.S. government is that ultimate accountability is and must remain in the hands of an informed citizenry” (p. 6). An important effort with long-term civil and international implications, Protecting Liberty in an Age of Terror is a valuable resource for policy makers and commanders charged with prosecuting the current unconventional conflict without compromising civil liberties.
Maj Stephen Pieper, USAF
Naval Postgraduate School
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