Rewriting the rules of freedom and security


Mark Follman
November 17, 2004 4:35AM (UTC)

Battling the authentic threat of terrorism can be a particularly thorny issue for antiwar liberals -- how to reconcile fierce advocacy of human rights, civil liberties and transparent government, and the potential need for extraordinary measures during wartime?

A new report, "Preserving Security and Democratic Freedoms in the War on Terrorism," authored by Juliette Kayyem and Philip Heymann of Harvard University, pulls together the recommendations of a range of bi-partisan policy and security experts on 10 critical issues and the "clear rules" they say are needed to reconcile "critical democratic norms and security concerns around each."

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Some of the report's recommendations may spark more contention than others.

On coercive interrogations, the group says, "The United States must comply with its treaty obligations not to engage in torture. Treaty obligations not to use cruel and inhuman techniques short of torture must also be obeyed unless there is a clear immediate threat to American lives that only coercion might stop; the president must approve this limited exception. Regularly permissible interrogation techniques consistent with the Convention Against Torture should be approved by the president and provided to Congress."

On targeted killing: "Outside a combat zone, there must be no targeted killing unless the president finds evidence that the killing is immediately necessary and provides that evidence to Congress. Targeted killing is never allowed against Americans, anyone in the United States or anyone in a country that is willing to extradite the suspect for trial.

On the incendiary issue of profiling, they make some key distinctions: "Profiling Americans based broadly on race or national origin is never permitted. Treating a citizen differently from others based on his or her association with a religious or political group is permissible if the group is reasonably suspected of planning criminal activity or is an agent of a foreign power. Differing treatment on the basis of an individual's nationality is permissible where access is granted at the discretion of government agents (at an airport or sensitive facility, not a public park)."

On government oversight: "If the executive branch feels compelled to take extraordinary measures that impose on traditional freedoms in order to protect the country, Congress should establish a nonpartisan commission to continually review the need for them. Each government agency's inspector general should annually review the use of any extraordinary authority."

The latter, of course, addresses the long-running debate over the powers granted by the USA Patriot Act; indeed, better Congressional oversight is a prevailing theme in the Op-Ed Kayyem and Heymann published in today's Baltimore Sun.

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"Whether or not Congress adopts these recommendations," they conclude, "it must accept its responsibility to provide clear guidance on what we as a society do and do not want done to keep us safe from terrorism. The threat of highly destructive terrorism will be with us for decades, and it must be addressed democratically through legislation if we are to remain free. If it isn't, our legislators will have no one but themselves to blame when the executive goes too far -- or not far enough."


Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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