Ramblings

Allan C. Brownfeld

Allan C. Brownfeld covers Washington, D.C.

National Security and Individual Freedom, Where Should the Line Be Drawn?

In the wake of the September 11 terrorist attacks, the power of government has been slowly growing, ostensibly to be better able to combat the continuing danger.

Historically, whether we consider the Civil War, World Wars I and II, or other conflicts, we have seen that in times of external danger, government power tends to grow dramatically, often in ways that have little to do with the problem at hand, and in ways that continue even after the conflict has ended.

In the past, those who sought to expand power and diminish freedom have always had a variety of good reasons to set forth for their purposes. In the case of Olmstead Vs. United States (1927), Justice Louis Brandeis warned that

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in the insidious encroachment of men of zeal, well meaning but without understanding.

In our own day, in the name of ecology, the environment, racial equality, public health and a variety of other “beneficent” purposes, the power of government has grown and the freedom of the individual has diminished-just as Justice Brandeis feared it would. The current war on terrorism is no exception.

Under the USA Patriot Act, we are subjected to unprecedented extensive electronic surveillance with minimal judicial review. The FBI now has the power to track every keystroke a person under suspicion makes on a computer. And the FBI can now compel librarians and bookstore owners to reveal the names of books bought and borrowed by Americans who might be, under very loose definitions, involved in domestic terrorism.

Consider the new Information Awareness Office (IAO) at the Pentagon, being run by John M. Poindexter, the onetime national security adviser to President Reagan who was convicted of five counts of lying to Congress, among other charges. The mission of this office is “Total Information Awareness.” The IAO’s website describes it this way:

The goal of the Total Information Awareness (TIA) program is to revolutionize the ability of the United States to detect, classify and identify foreign terrorists-and decipher their plans-and thereby enable the U.S. to take timely action to successfully preempt and defeat terrorist acts.

To do this, the IAO is developing hardware and software to look for suspicious information, including travel itineraries, credit card purchases, bank accounts, e-mail messages, web site visits and medical records. All Americans-those suspected of terrorism and those who are not-would have their information placed in a huge, centralized data base.

Those concerned with civil liberties, both conservatives and liberals, are ringing alarm bells over the Big Brother initiative. Former Colorado Senator Gary Hart, a member of the U.S. Commission on National Security, said Poindexter’s project, which has a $200 million annual budget, could be “a huge waste of money.” He said it represented “total overkill of intelligence” based on “an Orwellian concept.” Conservative columnist Jacob Sullum notes that

Poindexter’s last big scheme, which involved raising money for Nicaraguan rebels by selling weapons to Iran, did not work out so well. In 1990 the former Navy admiral was sentenced to six months in jail for trying to cover up the deal by lying to Congress, destroying documents and otherwise interfering with a congressional investigation. Maybe Poindexter has learned that sneakiness has its price. So far his office has been admirably up-front about its intentions. The IAO’s ominous emblem features an eyeball scanning the globe from atop a pyramid. Below it is the motto “Scientia Est Potentia”: “Knowledge Is Power.” Hoover couldn’t have put it better.

Beyond this, a number of Americans are being held incommunicado in military prisons in the United States without any charges against them and without access to lawyers. Federal judges are being told by the Justice Department that the judges do not have any right to determine whether due process is being accorded these prisoners. Harvard Law Professor Lawrence Tribe says that,

The executive branch is taking the amazing position that, just on the president’s say-so, any American citizen can be picked up, not just in Afghanistan, but . . . on the streets of any city in this country . . . just because the government says he’s connected somehow with the Taliban or al Qaeda. . . . That’s not the American way. It’s not the constitutional way.

The Bush administration wanted to adopt a program called Operation TIPS (Terrorism Information and Prevention System) that would have encouraged Americans to look out for suspicious activity on the part of their neighbors and report anything unusual to the U.S. Department of Justice. Fortunately, Rep. Dick Armey (R-Texas), the outgoing Republican House leader, opposed and managed to stop this program. He reminded Attorney General John Ashcroft and Homeland Security Director Tom Ridge that everything we do for national security must be within the bounds of the Constitution. “Citizens,” Armey declared, “should not be spying on one another.”

David Keene, chairman of the American Conservative Union, notes that,

History suggests that in time of crisis, those seeking to safeguard the security of the American people more often than not run roughshod over the freedoms they are fighting to preserve. Abraham Lincoln suspended constitutional safeguards and threw innocent citizens into prison without trial to preserve the union. Franklin Roosevelt trumped him by rounding up everyone of Japanese descent in the days following Pearl Harbor and tossing them into camps as a means of thwarting an anticipated wave of sabotage. . . . In every case, those who restrict individual liberty argue that what they are doing is being done for the good of the very people from who they are taking it.

Conservatives, in particular, should be concerned about the accumulation of so much power in any single branch of government. James Madison in the Federalist Papers No. 47 makes the point

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many . . . may justly be pronounced the very definition of tyranny.

In September, 2001, when the Bush administration was trying to gain quick congressional approval for its new antiterrorism laws, Rep. Robert Barr (R-Georgia) asked:

Why is it necessary to rush this through? Does it have anything to do with the fact that the department has sought many of these authorities on numerous other occasions, has been unsuccessful in obtaining them, and now seeks to take advantage of what is obviously an emergency situation to obtain authorities that it has been unable to obtain previously?

At that time, individual rights champions as disparate as conservative Paul Weyrich, the American Civil Liberties Union and the libertarian Cato Institute cautioned Congress and the White House against action that might impinge on the very rights they are seeking to protect. Alan Brinkley, an historian at Columbia University, said:

Habeas corpus is gone, trial by jury is gone. This is one of the most extraordinary assaults on civil liberties, albeit not of citizens, in our history.

Except for the Japanese internment during World War II, he said, the U.S. has never targeted citizens or non-citizens “in measures that would strip from them virtually all of the constitutional protections.”

Professor Brinkley’s analysis may go too far. Professor Charles Fried of Harvard Law School insists that even if President Bush has suspended the writ of habeas corpus in the military tribunals, he would be justified. In fact, the Constitution allows Congress to suspend habeas corpus “when in cases of rebellion or invasion the public safety may require it.” To the question “Is this due process?” Fried answers:

Yes. It is that process due under the laws of war. The British call it principles of natural justice, recognized universally: that you be tried before an impartial tribunal; that you have a chance to hear the evidence against you, to question and to produce your own evidence, and the right to some kind of assistance of counsel, although not the person you’d want to have.

Wartime emergency measures, many fear, seem to have no end in sight. It is essential that measures adopted in the name of national emergency do not endure after the emergency. As Harvey Mansfield, the Harvard political theorist, warns:

The trouble of speaking about necessity is that concept is elastic, and it can be stretched to include many things that aren’t really necessary.

Emergency antiterror powers being assumed by government may have less to do with successfully fighting the war on terrorism than real reform in agencies such as the FBI and CIA, which performed so poorly in preparing us for the new enemy we face.

There is little evidence at the present time that such reform has occurred or is now underway. In a report issued more than a year after the September 11 attacks, the Justice Department’s Office of Inspector General declares that the FBI never performed a comprehensive written assessment of potential terrorist threats facing the U.S. and failed to assess the likelihood of future strikes or would-be terrorist targets after September 11.

The report also said that the FBI had not developed a full assessment of the threat of a terrorist attack with chemical or biological materials or with other weapons of mass destruction.

If the FBI and the CIA had been alert to the danger of terrorism from the beginning, under existing law, the nature of today’s threat would be far different. We must be sure that in fighting terrorism we understand that if we sacrifice our own freedoms, the terrorists will have won. That is something which civil libertarians on both the right and left seem to understand-but that some others, eager to expand their own powers, seem not to.

Any Policy of Global Democracy Has Many Potential Pitfalls, of Which We Seem Unaware

The Bush administration appears to be preparing for a crusade to spread Western-style democracy to such Third World countries as Iraq, Saudi Arabia, Yemen, Syria and other states in the Middle East.

In December, 2002, for example, Secretary of State Colin Powell announced an ambitious program to encourage fundamental economic, political and educational changes in the Middle East. The new U.S.-Middle East Partnership Initiative, Powell said, would attempt to move Arab societies out of their state of economic stagnation, closed and rigid political systems, and severely limited educational opportunities, especially for women. Despite some progress in some countries, Powell declared:

Too many Middle Easterners are ruled by closed political systems. Too many governments curb the institutions of civil society as a threat, rather than welcome them as the basis for a free, dynamic and hopeful society.

The idea of spreading democracy is hardly a new one for American leaders. After World War I, Woodrow Wilson sought to spread the idea of self-determination, democracy and nation building. He was so committed to the League of Nations as a basis for achieving such goals that he permitted his European allies to engage in a massive land-grab and to set up the conditions through the Treaty of Versailles which set the stage for World War II. While his intentions may have been virtuous, the result was not.

The Bush administration, prior to September 11, was dubious about the entire “nation-building” enterprise in Third World countries. In a January 2000 article in Foreign Affairs, National Security Adviser Condoleezza Rice noted with disapproval that there were “strong echoes” of “Wilsonian thought” in the Clinton administration.

Now, the president’s National Security strategy, announced in September, commits the U.S. to lead other nations toward “the single sustainable model for national success,” by which is meant free markets and liberal democracy.

In the case of Iraq, the idea that the U.S., in a post-Saddam Baghdad, can create a Middle Eastern equivalent of Denmark seems highly unlikely. Professor Michael Ignatieff, director of the Carr Center at the Kennedy School of Government at Harvard, notes that,

Order, let alone democracy, will take a decade to consolidate in Iraq. The Iraqi opposition’s blueprints for a democratic and secular federation of Iraq’s component peoples-Shiites, Sunnis, Kurds, Turkomans and others-are noble documents, but they are just paper unless American and then international troops, under United Nations mandate, remain to keep the peace until Iraqis trust one another sufficiently to police themselves . . .

Is Western-style democracy really possible, overnight, in societies which do not have a tradition of democracy, of freedom of the press and of religions, a literate public and a system of law and independent courts? Or might such an effort to alter the governments, and lives of people with histories far different from our own lead to a situation even worse than the one we have today?

In a new book, World On Fire, Professor Amy Chau of the Yale Law School argues that democracy can be harmful for some non-Western countries, especially when combined with a free market economy. She sees this combination as particularly dangerous in those countries where some ethnic minority is dominant in a free market economy, while the majority population dominates politics through their votes. The Chinese minority, for example, is dominant in the economies of Indonesia and Malaysia, and the Indian minority is dominant in Fiji.

The idea that a single form of government can be spread to every corner of the world-the idea held by Marxists and other ideologues of the past-seems far removed from reality. The eighteenth century Whig reformer and advocate of the American colonies, Edmund Burke, wrote to the sheriffs of Bristol in 1777 on the affairs of America:

I was never wild enough to conceive that one method would serve for the whole, that the natives of Hindustan and those of Virginia could be ordered in the same manner. . . . I was persuaded that government was a practical thing, made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians.

Many Americans forget the manner in which U.S. policy helped bring the Sandinistas to power in Nicaragua-in the name of spreading “democracy.” Almost from the beginning of his presidency, Jimmy Carter tightened the screws on Nicaragua because of its autocratic regime. By executive decree, the president prohibited the sale of military equipment. The president’s representative on the International Monetary Fund twice blocked badly needed standby credits for Nicaragua. When financing for Nicaragua’s hydro-electric dam project was obtained through other nations, President Carter pressured those nations to cancel the financing arrangements.

Under orders from the White House, the U.S. Department of Agriculture gave instructions to beef inspectors to shut down Nicaraguan beef exports to the U.S. The U.S. embassy in Managua called and advised businessmen of the opposition political party to transfer their dollars from Nicaragua to the U.S. At one point, the U.S. Ambassador to Nicaragua, William Bowdler, told President Somoza that “the Carter policy was to see that all of the right-wing governments in Central America were replaced and that Nicaragua would be the first to go.”

Under serious attack from rebels armed by Cuba, Nicaragua was unable to purchase needed military supplies from the U.S. When he was finally able to purchase vital ammunition from Israel, Somoza said that as the ship approached the Nicaraguan coast

. . . it turned back to Israel. We suspected the reason for the sudden change in shipping plans, and later our suspicions were verified. U.S. intelligence had learned the destination of this ship and the cargo she carried. Under extreme pressure applied by the U.S., Israel made the decision to return the ship. . . . At the time of my departure, we must have had close to 20,000 men who wanted to fight the enemy. These men were never defeated by the international invaders; they simply did not have the means with which to fight.

Thus, U.S. policy, seeking to oppose Somoza, a corrupt dictator, and to bring democracy to Nicaragua, succeeded instead in bringing the Sandinistas to power. The Sandinistas proceeded to eliminate freedom of religion and the relatively free press that had existed in Nicaragua. The economy collapsed, life became worse for the Nicaraguan people and they became victims of a Marxist dictatorship. America’s good intentions made things worse, not better.

Similar good intentions assisted the Ayatollah Khomeini in coming to power in Iran and Robert Mugabe in assuming power in Zimbabwe. Those policies were advocated by Democrats and liberals. The same approach now seems to be advocated by Republicans and, in particular, neo-conservatives.

Is it likely that U.S. policy can achieve the democratization of the Middle East? Last summer, the UN Development Program commissioned a panel of regional experts to write an Arab Human Development Report. The report declared:

The wave of democracy that transformed governance in most of Latin America and East Asia in the 1980s and Eastern Europe and much of Central Asia in the late 1980s and early 1990s has barely reached the Arab states. More than half of Arab women are still illiterate. Only 0.6% of the population uses the Internet. The quality of public institutions is low. One out of every five people lives on less than $2 per day. Poor or unavailable health care or opportunities for a quality education, a degraded habitat, all are widely prevalent in Arab countries.

The Arab world has largely failed to establish effective, responsive and representative governments. Can the U.S. impose democratic regimes upon a region which has never had democracy before-in a region which, according to the recent poll of the Pew Global Attitudes Project 75 percent of the respondents even in a pro-Western country such as Jordan have negative views of the U.S.?

Our experience thus far in Afghanistan should be instructive. U.S. commanders are now being asked to direct an ambitious effort at nation-building, the very Clinton-era policy ridiculed by candidate George W. Bush. American combat units are harassed almost daily by rocket-fire and hit-and-run attacks. Taliban and al Qaeda fighters enjoy freedom of movement in the lawless tribal highlands of Pakistan. Two Afghan ministers have been assassinated and their killers remain free. President Hamid Karzai, who has survived an assassination attempt, is guarded by an American security detail. His government has yet to extend its authority beyond Kabul, the capital.

The notion held by Woodrow Wilson, Jimmy Carter and, apparently, George W. Bush that American ideas and ideals are universal seems to be accepted on faith, for the evidence that this is the case is almost impossible to find.

Needless to say, the world would indeed be a better place if the American values of freedom, pluralism, free markets and civil liberties were universal. Sadly, they are not. And we must be aware that by attempting to inflict these values upon nations which are not ready to receive them, we may make things worse rather than better for the men and women involved, and for ourselves as well.

Two hundred years of American civilization, and many years of evolving British ideas of limited government and representative institutions which preceded them, have led us to our current political, economic and social system. To seek to recreate overnight such a system in the Third World may be more than misplaced idealism. It may be ideological hubris which, in the end, will be most harmful to our own country and way of life.

Escaping Accountability Has Become a Way of Life

Individuals and institutions-from government to the church to business and beyond-are in wholesale retreat from any degree of accountability for their actions.

Hundreds of pages of church documents released in Boston in December show that officials of the Roman Catholic Archdiocese of Boston allowed priests accused of abuse to remain in the ministry or failed to persuade them to receive residential psychiatric treatment. In one case, a priest of Youngstown, Ohio was placed in a Boston parish just after being treated for pedophilia, despite warnings by the treatment center and the Youngstown bishop that the priest not be allowed to have contact with children. Several young men in Boston parishes later said the priest abused them, and he was convicted of sexual abuse in New Hampshire.

Governor Frank Keating of Oklahoma, chairman of a church panel studying the sexual abuse crisis, said his group had contacted some of the nation’s 194 dioceses to assess their files on abuse. In this early step in producing a nationwide study outlining the scope of the crisis, the board has found some records “inadequate.” Keating asked:

How much of that is the result of the passing of time or ignorance and neglect, and how much of it is a conspiracy of silence remains to be seen.

For his trouble, reports The New York Times,

. . . several Vatican officials, speaking anonymously, have criticized Governor Keating, who is Catholic but has said he admires Martin Luther. They have called him a self-serving politician who is using the church as a whipping boy.

Robert S. Bennett, a Washington lawyer who is chairman of one of the national review board’s subcommittees, said he was

.. . . troubled about recent revelations which suggest that past abuse and how it was handled was more aggravated than previously thought.

In Phoenix, the bishop for the Roman Catholic diocese said he would answer questions about alleged sexual abuse by priests only if he has immunity from prosecution. Priests in Los Angeles have mounted a campaign against eliminating the statute of limitations for acts of pedophilia.

In political and business life, accountability is equally difficult to discover. Consider the last-minute insertion of a special-interest benefit for a pharmaceutical firm, Eli Lilly and Co., into the homeland security bill. The evidence is persuasive that this was a political payoff to a large campaign contributor.

What is involved in this case is the fact about 150 parents had sued Lilly, asking for damages totaling billions for dollars, claiming that a vaccine preservative, Thimerosal, caused their children’s disability. The provision inserted into the homeland security bill had the effect of dismissing the lawsuits. It requires parents to seek relief through the federal Vaccine Injury Protection Program, although parents say the statute of limitations for filing has run out and that Congress has deprived them of any legal recourse.

During the 2002 election cycle, Lilly gave more money to political candidates, $1.6 million, than any other pharmaceutical company, with 79 per cent of it going to Republicans. White House budget director Mitch Daniels is a former Lilly executive, and the company’s present CEO, Sidney Taurel, is a member of President Bush’s homeland security advisory council. Roll Call, the newspaper of Capitol Hill, declared that,

. . . the whole episode represents Congress at something close to its worst-the last-minute, dead-of-night attachment of special-interest provisions into must-pass legislation.

Whether Lilly’s product, Thimerosal, is the cause of some children developing autism is less then clear. In October 2001, the Institute of Medicine, a branch of the National Academy of Sciences, said there was no evidence that Thimerosal caused autism, but it did say the theory was “biologically plausible.” What is clear, however, is that Lilly is seeking to avoid accountability for its product in a court of law, and is using the political process to shield itself.

There has been much discussion about the failure of the CIA and the FBI to properly perform their intelligence-gathering function with regard to potential terrorist threats. For example, Kenneth Williams, an FBI special agent in Phoenix, sent a five-page memorandum on July 10, 2001 declaring:

Phoenix believes that the FBI should accumulate a listing of civil aviation universities/colleges around the country.

For more than a year FBI agents in Arizona were watching Middle Eastern residents in the area. One curious connection was a group that had enrolled at Embry-Riddle Aeronautical University of Prescott, Arizona. According to the memo, one of the students at the flight school was an al Qaeda sympathizer who kept a photo of Osama bin Laden on his living room wall. The memo warned that bin Laden might be sending terrorists to U.S. flight schools and identified two men with ties to al Qaeda. The memo was ignored.

The FBI and CIA ignored a host of warnings of this kind. Senator Arlen Specter (R-PA) believes that the U.S. intelligence community, and the FBI specifically, had more than enough information to spot the September 11 plot. He states:

My own professional judgment is that it wasn’t a matter of connecting the dots before 9/11; I think there was a virtual blueprint. I think had all of it been put together or leads followed that could have been put together, I think there was a distinct possibility of preventing 9/11.

Has anyone accepted responsibility for these intelligence failures? Has anyone resigned, or been removed from office? No one, it seems, is accountable.

And what of the Congress, which has the responsibility to oversee the intelligence agencies. In his important book, Breakdown: America’s Intelligence Failures Led to September 11, Bill Gertz, the highly regarded defense and national security correspondent for The Washington Times, reports:

Instead of checking the performance of agencies and how they spend upwards of $30 billion to $35 billion annually of taxpayer money, the committees of Congress charged with oversight have become cheerleaders for poorly managed, badly structured, and improperly funded intelligence agencies.

Gertz notes that,

Such is the case with Rep. Porter Goss (R-FL), chairman of the House intelligence Committee at the time of the September 11 attacks. Goss was notorious among congressional aides for stripping out any tough legislation from the annual intelligence authorization bills that would have required the CIA to become more effective. He played a major role in making sure oversight did nothing to improve the CIA. A former CIA officer, Goss saw it as his personal mission to protect the agency from its critics. The result was that the CIA was able to manipulate the House oversight panel to neutralize any serious effort to improve its performance.

The business scandals-from Wall Street to Enron to Worldcom-bring to mind Amrose Bierce’s definition of the corporation in The Devil’s Dictionary, as “an ingenious device for obtaining individual profit without individual responsibility.”

In the end, lack of accountability for one’s actions-in whatever sphere of public or private life-becomes a threat to the stability of a free society. This was understood by Edmund Burke.

In a letter to a member of the French National Assembly in 1791, Burke wrote:

Men are qualified for civil liberty in exact proportion to their disposition to put chains upon their own appetites, in proportion as their love of justice is above their rapacity; in proportion as their soundness and history of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsels of the wise and good in preference to the flattery of Knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less there is of it within, the more of it there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.

And to the extent that we permit a lack of accountability to persist, we become accomplices in the decline of the very values that must be maintained if a free society is to endure.