Remember the debate about waterboarding? It developed when, during the Bush administration’s prosecution of the “war on terror,” news accounts revealed that certain terrorist suspects had been subjected to that “enhanced interrogation” technique so as to elicit information about planned future attacks.
The argument in favor of the technique had two main points. The first was that waterboarding was not torture and therefore wasn’t a violation of international law. (The Geneva Conventions, ratified by almost 200 countries, prohibit the infliction of torture on any captive.) Instead, it was deemed by the Bush administration (and forcefully advocated by Vice-President Dick Cheney) to be nothing more than a rigorous form of interrogation.
That point was strongly disputed by human rights advocates and failed to win much acceptance with the general public, especially when any number of news organizations and documentary film makers described and demonstrated the technique in fairly graphic detail. In essence and simply stated, a prisoner who was subjected to the technique was made to feel as if he were drowning (without, it might be added, being assured that he wouldn’t).
The first point having failed to carry the argument, the administration (again, Mr. Cheney leading the way) claimed that in a war against heinous actions like the 9/11 attacks, waterboarding was effective at preventing further attacks. This point received a more favorable reception from the American people, albeit not so much that it made the continued use of the technique acceptable. (Years later, “Zero Dark Thirty,” the film recounting the hunt for bin Laden, suggested that the waterboarding of at least one captive did assist in the ultimate killing of the al Qaeda leader.)
What neither of these points addressed was the morality of waterboarding, i.e., whether, apart from potentially violating international law or effectively aiding in the war against terrorism, the technique was inherently immoral, or, to be less sanctimonious, just plain wrong. That question was never really pressed, probably because the administration’s defense of the technique was so cleverly tied to images of the 9/11 attacks and the public’s early support for, or at least acquiescence in, the wars in Iraq and Afghanistan.
On taking office, President Obama effectively brought the argument to a close by declaring that the United States wasn’t going to engage in any form of torture, thereby including, implicitly, if not expressly, waterboarding.
But recent disclosures reveal that the use of another Bush administration “weapon” in the “war on terrorism” has been continued, if not increased, by the Obama administration. Call this one “enhanced surveillance.” It involves monitoring the various forms of communication (in particular phone calls and e-mails) that occur internationally. By employing modern technology, the U.S. government has been keeping detailed records of who transmits those communications and who receives them.
And so a new civil liberty issue is front and center with the American populace. It concerns whether the government is invading the privacy rights of its citizens, thereby crossing the line into Orwellian Big Brother territory.
There are similarities and differences in the arguments as to both of the enhancement issues. The question of whether torture is effective is difficult to answer. It may well be that those subjected to torture ultimately give up the information the interrogators seek. Opponents, however, argue plausibly that nothing a victim of torture says can be deemed to be wholly reliable. But no one seriously claims that government surveillance is ineffective in wartime. Being aware of enemy plans has always been a valuable asset in war. Code breaking in past wars was often a critical element in victory for one side over the other.
So to claim that enhanced surveillance is an ineffective tool in wartime (or in crime-fighting, for that matter) is really a non-starter. It never hurts to have more information about an enemy’s plans, even if the plans aren’t necessarily material or relevant to the battle at hand.
But breaking an enemy’s code is one thing; snooping on the activities of your own citizens, especially when your Constitution may well prohibit that kind of government action, is quite another. The issue isn’t so much a question of morality, not, at least in the same sense that torture raises that question. Rather, it’s a matter of what the compact (as represented by the nation’s Constitution) is between the government and the people.
The use by the government of enhanced surveillance against its own citizens in times of war is too easy and therefore very dangerous. In theory, as the claim of a threat becomes more pronounced, the actions taken by the government to thwart the threat are more clearly justified. Thus, when a war that has no international boundaries and no clearly identified enemy is being waged, the government can claim that what would otherwise be unconstitutional action may be adopted.
Past presidents have ignored the Constitution in times of war. Abraham Lincoln did so when he dispensed with habeas corpus rights during the Civil War. John Adams signed into law the Aliens and Sedition Act that was ultimately declared unconstitutional when the country was in an undeclared naval war with France.
But those actions were limited in time and were hotly contested in the courts and Congress. The current use of enhanced surveillance by the U.S. government has the support of Congress (through the Foreign Intelligence Surveillance Act) and the apparent endorsement by the judiciary (through the FISA courts that oversee the government’s surveillance actions). Thus the checks and balances intended by the founders in the three independent branches of government are currently ineffective checks on government abuse.
And, with the FISA courts largely acting in secrecy (their proceedings are classified), the potential for overreach by the government that could lead to a loss of constitutional protections is obvious. And the effective result of such a loss—a government that claims the need to know more than its citizens would otherwise agree to let it know—is the grave risk.
In fictional accounts (like Orwell’s “1984”), such governments are tyrannies. In real life, they are no less oppressive. And, yes, it can happen here.
What happened to the 4th Amendment – Unreasonable search and seizure?