Civil Liberties in an Age of Terrorism

In Defense of Our America: The Fight for Civil Liberties in the Age of Terror by Anthony Romero and Dina Temple-Raston (William Morrow, 252 pages, $24.95)

Khaled El-Masri, a German citizen suspected of links to terrorism, was abducted by Macedonian officials while on vacation there in late 2003 and turned over to a group of CIA agents. El-Masri had fallen victim to the shadowy practice of rendition, whereby a foreign national can be taken by the CIA to a third party country.

As Dan Benjamin has pointed out in Slate, renditions before 9/11 were not morally problematic because the rendered suspects were frequently taken from countries without functioning legal systems and transported to more stable countries for trial. The problem these days is that several suspects have been rendered to countries with less-functional legal systems and a penchant for "harsh" interrogations. El-Masri, for example, claims he was transported from Macedonia by men in black masks to a secret U.S.-run prison -- a facility known as the "Salt Pit" -- in Kabul, Afghanistan. He further alleges the government beat and tortured him in the course of his interrogation. For five months, he had no access to communication with his family, a lawyer, or knowledge of any charge against him.

The worst part? It turned out to be a case of mistaken identity. But the CIA, rather than make amends after months of wrongful imprisonment, simply dumped him on a hillside in Albania without explanation.

This story is one of several post-9/11 civil liberty narratives in Anthony Romero's new book, In Defense of Our America, The Fight for Civil Liberties in the Age of Terror. It is important to note, however, that the book is not just about the dark world of foreign threats and terrorist foes. It is a battle which also affects the most ordinary Americans, from the indigent in New Orleans to the writers and journalists who may have been illegally wiretapped by the National Security Agency.

Romero, executive director of the American Civil Liberties Union, stitches together all these stories and details to draw a comprehensive and human picture of the ACLU's recent legal battles. For example, he paints a sympathetic portrait of John Walker Lindh, the so-called American Taliban, not as a commentary on the self-described Islamic fighter's guilt or innocence, but rather because then-Attorney General, John Ashcroft was so openly presumptuous of Lindh's guilt. Romero poignantly links this contemporary attitude towards terrorism -- where concerns of security trump established legal liberties and due process -- to the Palmer Raids in the 1920s when immigrants were indiscriminately rounded up and deported as the "enemy within."

In the process, Romero brings the necessity of civil liberties close to home. Whether it is the broken legal system that incarcerated large numbers of people beyond their release date and without due process in the wake of Hurricane Katrina or the Pentagon program, TALON, which secretly spied on college anti-war protestors (cataloging some 1,500 "suspicious" activities), Romero's account demonstrates how pressing the need to fight for civil liberties actually is, even though it can seem distant from the quotidian realities of everyday Americans. What finally rescued many New Orleans prisoners like Greg Davis from months of incarceration past their sentences was habeas corpus, the same right now categorically denied, Romero notes with irony, to all detainees held by the United States at Guantánamo Bay. Habeas corpus, which any American would claim if he or she were ever wrongfully detained, has been infringed upon thanks not only to the Bush administration, but to the Congress which legislated it off the books for detainees in Cuba in the Military Commissions Act of 2006. Romero wants Americans to know that.

In other areas, too, the state of civil liberties looks grim. Ann Beeson and Ben Wizner, both lawyers for the ACLU, took on the extraordinary-rendition case of Khaled El-Masri, but the feds were able to get the case dismissed on the grounds that confirming El-Masri's detention would expose "state secrets." This is a strategy characteristic, Romero writes, of a government "grown increasingly closed and secretive." It leaves one wondering how a widely publicized case, investigated by the Europeans, could have been so prejudicial to undisclosed national interests. Or was airing the dirty laundry of the CIA too high a price in accountability for the government to pay?

Shortly after the courts dismissed El-Masri v. Tenet, on December 25, 2005, The New York Times broke the story of the NSA's secret, warrantless wiretapping program. Beeson subsequently had a hand in this case, too, gathering together journalists and lawyers who were likely to have been spied on in the NSA's surveillance sweeps. [Ed. Note: Prospect Senior Editor Tara McKelvey is a plaintiff in the case.]

The ACLU scored a temporary victory when Judge Anna Diggs Taylor of the U.S. District Court in Detroit ruled in August 2006 that the program was unconstitutional. But the Sixth Circuit (shortly after the publication of Romero's book) rejected it on the technical grounds that none of the plaintiffs could prove they had been spied on, and thus lacked standing to challenge the program's constitutionality. This paradoxical position, while perhaps legally defensible, allows the executive to slip through a seam between the law and the courts, so that any American who has been unlawfully spied on against his or her Fourth Amendment rights will have no recourse against the government. Even conservatives are unsettled by that.

The book is an engaging read, more like a novel than a collection of legal analysis. There is a dramatic edge to the interwoven narratives, and just the hint of a thriller in the way chapters are divided. Although the chapter titles, such as "Outside Forces" or "A World of Pipe Carriers," sometimes seem obscure, the format works. The life of the civil libertarian, it turns out, is not all dry and picky legalism, but the heroic defense of values embedded in the Constitution. Tulane law professor Pamela Metzger, who campaigned tirelessly for the legal rights of the poor hit by Hurricane Katrina, is compared not unfavorably with Jaclyn Smith from Charlie's Angels. Still others, like Beeson or Wizner, are fighting backing a government whose frequent claims of national distress seem to make it powerful and persuasive. The rallying cry of this ACLU Justice League is that while the government may have a monopoly on violence and power, it is limited, and ought to be limited, by a republic's rule of law. One thinks the framers, themselves victims of an unchecked executive power, might have felt deeply sympathetic to a book like this.

The real payoff for reading In Defense of Our America, however, is Romero's afterward. It's a thoughtful, moving 15-page synthesis of the multiple battlefields on which civil liberties cases are being waged. The writing becomes philosophical and emotional, personal and democratic. "In a country with no unifying language, no unifying religion, no unifying culture, what binds us as Americans," Romero writes, "is our belief in the rule of law and the basic rights that the Constitution affords to everyone."

For Romero, this feeling is not just the source of his employment, but the font of an unabashed patriotism, even a sense of American exceptionalism. If we really believe in that City on a Hill, he writes, we should be "brave enough to hold on to our freedoms even during the most difficult of times." Sound familiar from those hazy days of high school civics? That's right, he's quoting Benjamin Franklin. "Those who would give up Essential Liberty, to purchase a little Temporary Safety, deserve neither Liberty nor Safety." Let us hope our nation continues to deserve both.