Table of Contents
Since 9/11 debates on terrorism and counter-terrorism have been poorly informed. Fear and ideology rather than reason and facts have guided our policymakers’ decisions, creating a dichotomy between liberty and security. As a result, the US government has pursued policies that tend to be illegal, unethical and/or invasive.
In this paper I argue that the dichotomy between civil liberties versus national security is unsubstantiated, but that the relationship between the two concepts is highly interdependent. I argue this point in my paper by beginning with a brief history of terrorism and counter-terrorism in the US prior to the September 11th attacks. Following that, I will use four case studies to examine current US counter-terrorism policies: torture in interrogations, racial profiling, the NSA domestic surveillance controversy, and the use of FBI National Security Letters. Such policies not only erode civil liberties/human rights, but they also harm national security by obtaining dubious information via unethical means, diverting resources from real threats and eroding the important relations between law enforcement officers and ordinary citizens (particularly American Muslim communities).
Before beginning this paper, it is necessary to provide a definition of the word “terrorism.” However this is no easy task. According to researchers Albert J. Jongman and Alex P. Schmid, there are at least 109 different definitions of terrorism. Some analytical hurdles to overcome before arriving at a definition include:
- Terrorism vs. Liberation. One man’s freedom fighter is another man’s terrorist. How is one to distinguish between the legitimacy of two different sides’ agendas? Is it through the ideology or through the means? Both?
- Terrorism as a crime vs. war. Is it a criminal act or it is a type of warfare that needs to be conducted according to the law governing war?
- Targets. Who is considered to be a civilian? Are humans the only targets of terrorism? State vs. non-state. State security apparatuses engage in terrorism, like Iranian Revolutionary Guard Corps, as the Bush administration has argued, or the Israeli Defense Forces, as many Palestinians would charge? Or is it simply limited to non-state actors?
Ultimately trying to build a universal consensus for an objective definition of terrorism is impossible. The fundamental problem with defining the term is that it is extremely subjective, shaped by ideology, politics and power. This is why definitions of the term continue to change. Nevertheless, in order to provide analytical clarity of U.S. counter-terrorism, for this paper I define terrorism as:
A criminal act by non-state actors that seeks to employ violence against unarmed human civilians, as defined by the Geneva Conventions, for political purposes
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A Short History of Terrorism in the United States and Its Responses
Although the subject of terrorism has always been and continues to be a hotly debated and widely interpreted topic, one thing that its historians and contemporary analysts agree upon is that it is not a new form of violence. Recorded historical evidence supports terrorism’s origins at about 2,000 years with emergence of violent Jewish fanatical groups such as the Sicarii, however the term “terrorism” itself was not coined until 1793-4 during the French Revolution by Maximilien Robespierre.
The first recorded instance of what might be argued as terrorism in America took place in 1622 when the Powhatan Native Americans attacked the Jamestown colony in 1622, killing 30% of its inhabitants. Although there were sporadic uprisings and rebellions in early United States history, the first terrorist organization after the creation of the American republic was the white supremacist organization, the Ku Klux Klan (KKK). Formed in 1867, it was originally a non- violent social organization led by former Confederate general Nathan Bedford Forrest. However it soon turned to violence in 1868, murdering, beating up and intimidating black voters and white supporters of the Republican Party. Their attacks and intimidation were particularly effective in shaping voting patterns. After a massive Federal crackdown involving suspension of Habeas Corpus, legal convictions of dubious constitutionality and tough anti-Klan laws during 1871-72, the KKK disbanded itself. Although the KKK as an organization effectively ceased to exist, the Federal government’s overreaction ended up being counterproductive by helping the organization achieve its political objectives:
These laws probably dampened the enthusiasm for the Klan, but they can hardly be credited with destroying it. The fact was, by the mid-1870’s white Southerners had retaken control of most Southern states governments and didn’t need the Klan as much as before. Klan terror had proven very effective at keeping black voters away from the polls. Some black officeholders were hanged and many more were brutally beaten. White Southern Democrats won elections easily, and passed laws taking away many rights that blacks had won during Reconstruction. The result was a system of segregation which was the law of the land for more than 80 years. This system was called “separate but equal” (Schmid 2003).
The 1920s until the 1960s saw relatively few terrorist attacks on the United States soil –the time period classified as the “anti-colonial wave” by terrorism historian David Rapoport–most likely due to its lack of overseas territorial possessions. The notable exception to this is Puerto Rico, which perhaps not surprisingly is the origin of the terrorists who committed the 1954 shooting of Congress. America would experience a significant quantitative increase of terrorism on its main land shores beginning in the early 1960s and continues today. The 1960s until the fall of the Soviet Union in 1991, was when primarily leftist, anti-communist and ethno-nationalist (of various political tendencies) organizations were operating.
From the mid 1960s to early 1970s the FBI instituted its counterintelligence program against various left-wing organizations as well as “white hate” organizations like the KKK. It had greater success in dismantling the KKK than with leftist and Black Nationalist militants because the former effort was run largely as a criminal investigation, targeting criminal acts, whereas the latter was subject to a series of counter propaganda efforts and dangerous techniques inciting violence among members and between other organizations. Due to the illegal nature of many of the tactics used on leftist organizations and Black Nationalist organizations, many militants received little to no jail time. Their downfall had more to do with the collapse of the Soviet Union and the gains made by the civil rights movement than the FBI’s efforts.
Beginning the early 1990s until today the majority of terrorist attacks on the US mainland came from white nationalists and others on the far Right. Most of these attacks were successfully prevented, although some, such as the 1993 World Trade Center attack and the 1995 Oklahoma City bombing, were not. After the 9/11 attacks occurred–which was due to intelligence and management failures, not criminal investigation techniques–several pieces of legislation weakening privacy laws and law enforcement and intelligence oversight were passed. It appears that history is repeating itself as civil liberties are being eroded under guise of security; laws are being flouted even under weaker standards, while few international terrorists are caught and prosecuted.
In this paper I will examine four cases studies: torture in interrogations, racial profiling, the NSA domestic surveillance controversy, and the use of FBI National Security Letters. I argue that such policies not only erode civil liberties/human rights, but also harm national security by obtaining dubious information via unethical means, diverting resources from real threats and eroding the important relations between law enforcement officers and ordinary citizens.
Torture, Interrogation and the “Ticking-Time Bomb Scenario”
In late May 2007, the New York Times ran an article covering criticism from experts commissioned by the Intelligence Science Board (ISB) of current interrogation techniques used by various law enforcement and intelligence agencies. Their concern, expected of professionals in their field, probably revolves around a single utilitarian question: Does it help US national security? Their answer was no. Not only does torture harm US security interests by allowing terrorists like Bin Laden to use it as a rallying cry, it is useless as an interrogation tool.
The only slightly plausible justification for using torture is the “ticking time bomb scenario”–which posits that a government can justifiably use torture on a suspect they are certain possesses critical knowledge to stop a bomb that will imminently detonate and kill many people. This particular perspective is supported by academics like Bruce Hoffman and Alan Dershowitz. However, the likelihood of such a scenario depends on unrealistic conditions, such as:
- Law enforcement agents arrest the terrorist exactly during the time between bomb’s setup and its detonation
- Agents have the amount of intelligence to know this person has all of the information needed to locate the bomb and that this particular time is especially crucial
- The suspect him/herself has the remaining sufficient amount and quality of information to locate the bomb in time
- Torture will provide the necessary amount and quality of information to locate the bomb
- Torture will provide the necessary amount and quality of information quickly enough to locate the bomb and defuse it.38
To debunk these assumptions, it is important to start off by recognizing that intelligence and law enforcement investigations very rarely rely on one human source to provide a full picture of what is investigated. It takes piecing together several different clues and pieces of evidence from many sources to get a broader understanding. Second, putting ethics and legal issues aside for the moment, both medical researchers and professional interrogators have repeatedly stressed the ineffectiveness of torture–in both its physical and psychological forms–as an interrogation technique. Torture either validates and deepens the convictions of terrorists, making them even more resistant, or causes weaker individuals to say anything to stop their pain. In both cases, torture is also a very time consuming process and most likely under a face-paced situation, the bomb will have exploded. Both ways, torture interrogators will probably not get information in time and even if they do, most likely it will be unreliable. The information gleaned from highly coercive measures is outdated or false.
Beyond the practical concerns one must not forget that torture is not only ineffective and counterproductive, it is also illegal and unethical. Torture imposes a series of short and long-term physical and psychological damages on its victim and mentally damages the torturers. While certain government officials may believe torture is legally defensible, citing US and international law, domestic and international civil liberties/human rights groups and others have stated otherwise. Even if the Bush administration were to invoke national sovereignty to flout international legal frameworks, like the Geneva Conventions–which prohibits “mutilation, cruel treatment and torture” of detainees–the US Uniform Military Code of Justice and the War Crimes Act of 1996 make it a crime to violate the Geneva Conventions. A 1994 Federal anti-torture statute strengthens these positions by making it a crime for any US national who commits or attempts to commit torture.
Racial and Religious Profiling
Prior to 9/11 a national consensus outlawing the use of racial profiling was emerging. After the attacks occurred, this consensus quickly dissipated and attitudes among government and in large sectors of the public went in the opposite direction. Since then, public calls for racial profiling of Muslims – and others who “look Muslim” – have become common fare in public discourse. The logic of racial profiling supporters – both pundits and some public officials – rests on the faulty premise that it is a matter of survival against terrorists. To the contrary, I argue that racial profiling is not only unethical, it also compromises America’s legal foundations and its national security.
Before presenting my arguments over “racial profiling,” it is important to define the term. Since my focus on racial profiling deals with Muslims, it is important to that Islam is not a religion that is not confined to one particular skin color or ethnicity. Therefore in this paper, I have slightly modified Congressional Research Service’s definition of racial profiling. I define it as: the practice of targeting individuals for police or security interdiction, detention or other disparate treatment based primarily on their race, religion or ethnicity in the belief that certain racial, religious and/or ethnic groups are more likely to engage in unlawful behavior.
