The Liberties We Defend

The tragic and unbearable events of September 11
have united Americans and much of the world as they have not been united for
many years. The Bush administration has a unique opportunity to create effective
domestic and international structures to deal not only with terrorism but with
the other twenty-first-century threats to national and international security.

To do so, the administration will need to maintain its resoluteness but
also change its fundamental approach in relating to the rest of the world.
Before the terrorist attacks, the United States was telling other countries that
it would do what it wanted to do and that they could like it or not and cooperate
or not, as they chose. Now we are demanding that they follow our lead and
actively back American counterterrorism efforts. At least the administration
recognizes that it needs the help and cooperation of other states; but it still
does not understand that, even in the face of this tragedy, support over the long
run cannot be commanded. We must earn the right to lead by showing that we care
about the interests and views of others and are prepared to work together to
craft solutions that respond to others' perception of threats as well as to our
own.

Initial responses from around the world have been encouraging. The North
Atlantic Treaty Organization invoked Article V for the first time in its history.
Many other countries, including China and Russia, condemned the terrorist
acts--as did most nations in the Arab world. Pakistan pledged its cooperation and
began to press the Taliban. But these nations will not support continuing action
unless they see our venture as their fight as well and are given a role in
determining what is done. In order to ensure international support, we need to
use existing institutions and build on previous agreements.

Call Security

In my view, the key to building such a worldwide coalition is to call upon
the United Nations Security Council to handle this crisis--and to order all
nations to comply with its directives any time it determines that there is a
threat to international peace and security. This so-called Chapter VII authority
was invoked with the blessing of George H.W. Bush in both the Gulf War and
Somalia. Yet for reasons that are not clear, his son's administration has
downplayed the possible role of the Security Council.

There are a number of significant advantages to relying on the Security
Council. First, we would make it clear to other nations that we are acting in
accordance with the basic principles and procedures of international law. Second,
we would create a framework that allows other states to justify their support for
our policies: They would not be yielding to American pressure but fulfilling
binding international legal obligations. Third, we would give other states
confidence that they will be consulted about what we do instead of blindly
committing themselves to follow us.

The UN Charter lays out the steps that should be taken to deal with terrorists
and states that help them. The relevant provisions of Chapter VII are these:


Article 39. The Security Council shall determine the
existence of any threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace
and security... .

Article 41. The Security Council may decide what measures not involving
the use of armed force are to be employed to give effect to its decisions, and
it may call upon the Members of the United Nations to apply such measures. These
may include complete or partial interruption of economic relations and of rail,
sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.

Article 42. Should the Security Council consider that measures provided
for in Article 41 would be inadequate or have proved to be inadequate, it may
take such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the
United Nations.

The Security Council has, in fact, once before acted under Chapter VII to
impose an embargo on Afghanistan. In October 1999, the Security
Council--asserting that "the suppression of international terrorism is essential
for the maintenance of international peace and security" (and thus invoking its
Chapter VII authority)--strongly condemned "the continuing use of Afghan
territory, especially areas controlled by the Taliban, for the sheltering and
training of terrorists and planning of terrorist acts." Specifically condemning
the Taliban for providing a haven for Osama bin Laden, the council went on to
note that the failure of the Taliban authorities to respond constitutes a threat
to international peace and security. In addition to demanding that the Taliban
turn bin Laden over to U.S. authorities, it ordered all member states to prohibit
flights to and from Afghanistan and to seize all of the economic assets of the
Taliban if Afghanistan refused to comply with the UN Charter.

Thus, the council has already moved toward authorizing the use of military
force. The United States should make it clear that it wants the Security Council
to respond to the events of September 11 by demanding the immediate surrender of
bin Laden. And, barring that surrender, we should ask the council to require all
member states to observe a total embargo on Afghanistan.

In the meantime, we should develop military plans to seize bin Laden. This
may take far longer than it will to go through these steps with the United
Nations. The Bush administration seems to understand that air strikes with cruise
missiles will do no good. If we spill innocent blood in a mindless technological
attack, we will lose the moral high ground and the support we need in the world.

When our plans for military operations are in place, we should ask the
Security Council to authorize the use of military force under the direction of
the United States. We then can ask other countries to cooperate by providing
bases and overflight rights, if not military forces. We are much more likely to
achieve compliance if we act pursuant to a UN Security Council resolution.

Command and Control

The advantages of proceeding this way are abundantly clear. So why, as I
write this, has the Bush administration made only vague references to its desire
for UN support--and why has it not asked the council to invoke its Chapter VII
powers? One possible explanation is that Bush and company do not believe that
they can get the council's backing; perhaps they anticipate that Russia or China
would veto any resolution on the use of force. But it's likely that neither
country would block such a resolution. Both Russia and China supported the
earlier Chapter VII resolutions on Afghanistan. Both nations, moreover, view
terrorism by Islamic fundamentalists as a great threat to their own security.
Russia sees the war in Chechnya as another manifestation of this phenomenon, and
China fears that the large Muslim populations within its borders will be lured
into fanaticism and turn to terror.

Even if a resolution authorizing the use of force were not approved, the
United States still stands to gain by approaching the Security Council: It would
demonstrate our commitment to international law, which permits the use of force
in self-defense without the council's approval. If the council fails to act, I
believe we would have the legal and moral right to proceed, alongside those
countries that are willing to support us, with a sensible plan for military
action.

Recognizing that council support would carry a requirement to consult with
other nations and with the council itself, the Bush administration is likely
choosing to avoid going to the council because it is reluctant to yield in its
insistence on unilateralism. It wants to have the backing of other countries--but
without being subject to their influence or control. But leaders of other
democratic nations know that they may invite terrorist attacks themselves if they
blindly provide assistance to the United States and have no say in what is
done--especially if the actions lack a clear foundation in international law. And
Middle East leaders fear the wrath of their people and terrorist attacks on their
own soil if they get behind us without the cover of a UN Security Council
resolution.

We should use other existing international mechanisms in addition
to the UN Security Council. One promising vehicle is the Community of
Democracies, created with little fanfare at a meeting in Warsaw in June 2000. At
that meeting, more than 100 ministers from countries on the path to democracy
endorsed the Warsaw Declaration, a commitment that their governments will
"resolve to strengthen cooperation to face the transnational challenges to
democracy, such as state-sponsored, cross-border and other forms of terrorism ...
and to do so in accordance with respect for human rights of all persons and for
the norms of international law."

Terrorism is a particular threat to democratic states. In light of this, the
Bush administration should call a meeting among the convening foreign ministers
of the Community of Democracies--including Chile, the Czech Republic, India,
Korea, Mali, Mexico, Poland, Portugal, South Africa, and the United States--when
the UN General Assembly holds its delayed opening session this fall. In fact, the
two key leaders in the creation of the Community of Democracies, former Secretary
of State Madeleine Albright and former Polish Foreign Minister Bronislaw Geremek
have urged the convening foreign ministers to build on the Warsaw Declaration.
Following this meeting, it might be appropriate to call another--this time with
all 110 countries that are part of the Community of Democracies--in order to
adopt a specific action plan to complement the work of the United Nations.

Security and Liberty

If the challenge abroad is to create an effective coalition that builds on
the structures of the international community and relies on the rule of law, the
challenge at home is to fight terrorism without undermining the basic rights and
liberties of all who live within our borders. This will not be easy, and the
early signs are not good.

American history is full of sorry tales of our abandoning basic values in
times of war and crisis. In World War I, Congress passed the Alien and Sedition
Acts, which sought to curb public debate about the war. World War II saw the
internment of Japanese Americans. The Cold War produced the Smith Act and other
manifestations of McCarthyism. Anti-Vietnam War protests and the civil-rights
movement led to a host of intelligence-agency abuses, including the infamous
COINTELPRO (counterintelligence programs), under which the FBI manipulated and
discredited lawful political activity. After the Oklahoma City bombing, Congress
rushed to enact an antiterrorism statute that severely limited habeas corpus
review in the federal courts, provided for the use of secret evidence against
aliens who seek asylum, and prohibited aid to groups labeled terrorist by the
U.S. government--with no hearings or opportunity for challenge.

Not only do war and crisis bring inappropriate intrusions into our liberty,
but we are agonizingly slow in making amends when the crisis passes. We have only
recently apologized to Japanese Americans for their internment in World War II.
After the revelation of intelligence abuses in the 1970s, Congress debated for
several years about legislation that would have placed limits on the
investigative authority of the FBI, the CIA, and other intelligence agencies. In
the end, no such legislation was enacted.

U.S. intelligence agencies would like us to believe that Congress has imposed
restrictions on them that have in some way contributed to the failure to prevent
the recent catastrophe. That is simply not the case. The only limits that exist
are in directives issued by the U.S. president or by the directors of the FBI
and CIA. The assassination ban, for example, was first placed by President Gerald
Ford. The limits on CIA recruitment of human-rights violators are outlined in an
order by the agency's director. Both of these restrictions are subject to
interpretation or repeal within the executive branch, and neither was intended to
apply to terrorists. The legislation that Congress has enacted deals with areas
of privacy that are protected by the Fourth Amendment in which law-enforcement
agencies need specific authority to gather information.

I, among many others, have long warned that a serious terrorist incident in
the United States would panic Congress into passing anything that was labeled
antiterrorist. Thus, it is no surprise to me that the unspeakable acts committed
on September 11 have brought forth calls for sweeping legislation. Two days after
the attacks, the Senate--without debate--passed amendments to the existing
wiretap laws; and within a week, there was a bill circulating on Capitol Hill "to
combat terrorism and defend the Nation against terrorist acts, and for other
purposes." The bill includes the wish list of law-enforcement and intelligence
agencies in areas as diverse as intelligence gathering, immigration, and criminal
justice.

Some changes in legislation may well be justified in light of the terrorist
acts. But we need a full public explanation from the executive branch of what
each change means and why it is necessary. Then, we should take time to consider
the proposals and examine their consequences, with an eye toward balancing our
freedoms with our security. Next, congressional committees should conduct full
public hearings with witnesses drawn not only from the government but from
universities, industry, and advocacy groups. The hearings would need to be
followed by public markups, committee reports, and full floor debate. Even with a
complete process, we may end up granting law-enforcement and intelligence agencies
powers that they do not need and that could be misused in the future; but at
least civil libertarians and others who care about our freedoms will have a
chance to argue for precision.

September 11 will change our nation and our world in ways that we are only on
the verge of understanding, but that need not and must not change our commitment
to preserve our liberty as well as our security.

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