U.S. efforts to track down and prosecute terrorists since the 11 September attacks have led the American government to take aggressive legal action that in some cases, critics say, violates fundamental civil liberties. The U.S. also has led an antiterrorism coalition that includes governments with weak human rights records. In Part 3 of our series on the 11 September anniversary, RFE/RL explores the internal U.S. debate under way about national security and civil liberties, as well as the role of human rights in the new foreign policy of the United States.
New York, 2 September 2002 (RFE/RL) -- The administration of U.S. President George W. Bush vowed to pursue and punish those responsible for the 11 September attacks in a way that restored a sense of national security while respecting the U.S. Constitution.
But its actions in the past year have triggered new debate, and legal challenges, about the extent to which public safety measures may infringe on individual liberties. The most controversial moves include the roundup and detention -- amid unusual secrecy -- of people suspected of immigration violations, of being material witnesses to terrorism or of fighting for the enemy.
Bush last year also signed the USA Patriot Act, which gives federal officials new powers to monitor people they suspect of terrorist ties. That includes powers to intercept communications, demand records from libraries, and enter places of worship. This has raised alarm among some that the reach of the executive branch is extending too far.
Bush administration officials have stressed that the war on terrorism is unlike previous crises. And they say the Al-Qaeda terrorist network is a new kind of enemy with sophisticated patterns of communication and recruitment and a willingness to inflict mass casualties on civilians.
U.S. Attorney General John Ashcroft, who heads the domestic antiterrorism crackdown, stressed again in July the need for authorities to be equipped with new powers to detect and prosecute terrorists: "As terrorists have learned to adapt to the changing tactics of law enforcement, so, too, have we learned to adapt to the changing needs of America's domestic security. And among the chief lessons we have learned in the past 10 months is that our ability to protect the homeland today has been undermined by restrictions of the decades of the past."
But the government's methods have been challenged in federal court, and judges are beginning to add their voices to the issue. U.S. District Judge Gladys Kessler in August ordered the government to release the names of more than 1,200 people detained after 11 September. Kessler said the government had failed to prove the need for a policy of secrecy for the detainees and that secret arrests are a concept "odious to a democratic society."
The government is appealing her decision on the grounds that secrecy is vital to prevent Al-Qaeda from learning more about the antiterrorism investigation.
Another federal judge, Robert Doumar, has called on U.S. prosecutors to explain why they are holding a U.S.-born man captured in Afghanistan as a so-called "enemy combatant." The U.S. believes prisoners declared by the military as enemy combatants do not have the right to lawyers and can be held indefinitely without being charged.
Judge Doumar has previously ruled that the man, Yasser Esam Hamdi, is entitled to a lawyer. But a higher appeals court said that if sufficient evidence shows Hamdi is, indeed, an enemy combatant, his detention is lawful. The appeals panel said courts should defer to military designations of enemy combatants in wartime.
One of the organizations critically monitoring the U.S. government's antiterrorist measures is the American Civil Liberties Union. A legislative counsel for the group, Tim Edgar, tells RFE/RL that the detentions of Hamdi and a second man, American Jose Padilla, as enemy combatants signal a radical departure from constitutional traditions. Padilla was arrested in May in the U.S. for allegedly plotting to explode a radiological "dirty" bomb.
"I don't think really that there's anything that could be more dangerous than accepting the notion that the government has the power to label a person an enemy combatant, whether or not they're a citizen, and then simply detain them indefinitely without charge or trial of any kind, whether military or civilian."
But some legal scholars have written that the Bush administration's moves pose only a minor challenge to civil liberties, compared with previous public safety crises.
Richard Posner is a U.S. appeals court judge who also lectures at the University of Chicago Law School. He tells RFE/RL that in comparison with U.S. government actions during the wars of the last century, including the Cold War, the current measures seem moderate: "Anyone with a historical sense would say that the reaction has not been extreme. Maybe it's gone too far in particular areas with particular individuals, but there hasn't been a mass roundup of Muslims in the United States or anything like that."
Posner says civil liberties in the modern-day United States are so abundant that it is an exaggeration to say the nation's fundamental freedoms are under threat.
Spokesman Hussein Ibish of the American-Arab Anti-Discrimination Committee says U.S. society remains what he called "incredibly tolerant and incredibly free." And he credits the Bush administration with speaking out soon after 11 September against hate-crime reprisals involving Muslims and Arabs.
But Ibish tells RFE/RL that serious problems remain with the way the U.S. Justice Department has pursued terrorist leads. His organization is among the groups that sued the federal government to seek the release of names of those people imprisoned after 11 September.
Ibish said secret arrests and secret hearings run contrary to the basics of the U.S. system of justice: "It's really shameful and unnecessary that we've got a Justice Department right now which is obsessed with secrecy and that seems to think that conducting immigration law enforcement when it comes to Arabs and Muslims in conditions of total secrecy is somehow beneficial to the country."
The United States is also facing scrutiny of its terrorist campaign outside the country and for its observance of human rights. UN High Commissioner for Human Rights Mary Robinson and others have expressed concern over U.S. treatment of hundreds of suspected Taliban and Al- Qaeda terrorists at a prison camp at Guantanamo Bay, Cuba, and Washington's declared intention of trying foreign nationals in military tribunals.
Bush administration officials have said fighters from the former ruling Taliban regime are entitled to some of the rights under the Geneva Convention governing treatment of combatants captured in an international conflict. But members of the Al-Qaeda terrorist network -- who come from many different countries and represent no state -- do not fall under its provisions, they say, adding that the war on terror is a new type of war not envisioned when the Geneva Conventions were signed.
The International Committee of the Red Cross, which visits regularly with the detainees, points to the Third Geneva Convention, which calls for a decision by a competent tribunal if there is doubt about the status of prisoners.
There is also concern among activists about Washington's willingness to pursue the war on terrorism at the expense of human rights. Activists accuse the administration of easing pressure on Russia for rights violations in Chechnya because of Moscow's help in the antiterrorism coalition. And they say Central Asia's key supporting role for U.S. military forces heading to Afghanistan has emboldened authoritarian regimes in the region to crack down further on dissent.
The U.S.-based human rights monitor Freedom House issued a recent report urging the United States to use its foreign aid resources to strengthen civil life in the region and create conditions for political reforms.
Another U.S.-based watchdog group, Human Rights Watch, faults the United States for failing to use its new engagement to press for basic improvements in the treatment of political opponents, independent media, rights activists, and Muslims.
A Central Asia researcher with Human Rights Watch, Acacia Shields, tells RFE/RL that the United States has wasted a good opportunity: "One would expect the United States to use that new leverage to get more concessions from the Uzbek government, to get them to really rein in their forces and put a stop to the crackdown on independent Muslims. And you'd think you'd see a decrease in things like extrajudicial executions and the really horrendous torture cases. In fact, they just continue as if nothing has changed."
Shields says U.S. officials have been speaking out properly on rights abuses in the region. But there needs to be a linkage, she says, between progress on human rights and the aid provided by Washington to governments in the area: "Governments do not stop torturing because you had a meeting with them or you issued one report. It has to be part of a whole package -- changes in policy, changes in law."
U.S. Assistant Secretary of State Lorne Craner responds that Washington has waged a determined effort to improve human rights in the region. He tells RFE/RL that there has been some progress in Uzbekistan, noting two new cases in which police accused of torturing people have been imprisoned: "On Uzbekistan, I think if you talk to Human Rights Watch and some others, we would all agree that the situation there remains very poor. But I think they would also agree that more has been done since January than in the previous couple of years combined."
Craner disputes the claim that the U.S.-led war on terrorism has provided a shield for some human rights abusers in Central Asia and elsewhere. He says the U.S. State Department recognizes that poor human rights conditions can give rise to terrorism and instability. Craner says this message has been delivered repeatedly to Uzbek authorities, especially on their treatment of Muslims: "For all the thousands of people that you're putting into jail, who are simply expressing beliefs that lie outside the state church, you're increasing support for more radical solutions that you really don't want to have to face. So it's a case we make in many, many countries, but we explicitly -- publicly and privately -- reject this license to go after anyone under the guise of terrorism."
Craner says the U.S. aid programs to Central Asia are focused sharply on programs like training journalists or promoting human rights.
Human Rights Watch on 22 August urged the U.S. government to go a step further and designate Uzbekistan, as well as Turkmenistan, "countries of particular concern" for widespread violations of religious freedom and civil liberties.
The proposed action could lead to limitations on U.S. assistance or sanctions against the two nations. A decision on that designation is expected in several weeks.