The real victim has been civil liberties

America may have lost the confidence to be fair and liberal on 9/11 says TP O'Mahony

WHAT has al-Qaida done to the American Constitution and to that country's standards of fairness? Are the emergency measures to combat terrorism undermining cherished freedoms and civil liberties?

In the aftermath of the attacks on the World Trade Center, as the American campaign to find and destroy Osama bin Laden and his deadly network accelerated, these question were posed by Ronald Dworkin, professor of law and philosophy at New York University.

Concerned at aspects of President George W Bush’s “war on terrorism”, in which the White House has recruited other countries, Dworkin sought to alert people to the dangers inherent in new legislation, adopted policies and threatened procedures following 9/11.

A highly-respected academic, Dworkin was braver than most in raising such questions as America was engulfed in a ferment of patriotism after the attacks on the Twin Towers and the Pentagon in Washington DC.

Much of the public attention was focused on the war against the Taliban in Afghanistan, and the public mood was distinctly hostile to any criticisms of the Bush administration's treatment of Taliban prisoners or new anti-terrorist measures. One index of that mood can be gauged from the fact that 150 songs - including “Ruby Tuesday” and “Imagine” - were banned post-9/11 for being “lyrically questionable”.

The abhorrence of what happened on 9/11 was reflected in statements of sympathy and support from political leaders throughout the western world, including our own Taoiseach, Bertie Ahern.

Common to all of these was the belief that the attacks on New York and Washington were attacks on freedom and democracy itself, with the clear implication that America's friends and allies couldn't remain aloof.

In this kind of atmosphere - where in the US itself patriotism spilled over into jingoism - to be “against” any aspect of the Bush doctrine (including secret trials before military tribunals) was tantamount to disloyalty.

“The Bush government's dubious laws, practices and proposals have provoked surprisingly little protest in America,” says Professor Dworkin. He goes on to offer one explanation for this.

“Respect for human and civil rights is often fragile when people are frightened.”

And after 9/11, Americans were very frightened. The appalling destruction of the World Trade Center proved that America’s enemies were vicious, powerful and imaginative, and that they had trained, suicidal fanatics at their disposal.

It was a new kind of war, and it demanded new measures. So said the proponents of special military tribunals, and so did the defenders of the decision to designate the detainees at Guantanamo Bay in Cuba as “unlawful combatants”, rather than as prisoners-of-war and thus covered by the Geneva conventions.

Bush’s declaration that “you are either with us or against us” ensured that there was to be no middle ground. It not only stifled dissent, it bred a whole new rhetoric antipathetic to civil liberties and due process of law.

In his book, New Rulers of the World, John Pilger says that following the “stunning victory” in Afghanistan, hundreds of prisoners were shipped to an “American concentration camp” in Cuba, where they have been held against all the conventions of war and international law.

“No evidence of their alleged crime has been produced, and the FBI confirms only one is a genuine suspect. In the United States, more than 1,000 people of Muslim background have “disappeared”; none has been charged. Under the Draconian Patriot Act, the FBI's new powers include the authority to go into libraries and ask who is reading what.”

There are parallels here with the McCarthyism of the 1950s and the treatment of 100,000 Japanese-Americans who were rounded up and interned in the States during World War II. This gave rise to a famous case in the US Supreme Court in 1944 (Korematsu v. United States), where the court ruled that the exigencies of war could justify the detention of American citizens.

The court expressly weighed the hardship and disruption experienced by the internees against the perceived threat of espionage and sabotage.

Employing the same logic, those who defend the new anti-terrorist powers provided under the USA Patriot Act (passed by Congress on 25 October 2001) argue that some freedoms must be sacrificed in the interests of the greater good and security of the nation.

In a time of crisis, there are always problems for a democracy, central to which is the need to strike an appropriate trade-off or balance between two values - freedom and security.

The dilemma was classically outlined by Abraham Lincoln during the American Civil War (1861-65): “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"

Another famous American, Robert H. Jackson (former Supreme Court judge who served as prosecutor at the Nuremberg Trials of Nazi leaders after World War II) made much the same point when he opined: “We cannot allow our constitution and our shared sense of decency to become a suicide pact.”

For post-9/11 USA the dilemma is especially poignant. After all, the US was founded to protect basic freedoms, and, as even John Pilger acknowledges, it is the “home of some of history's greatest civil rights movements, such as the epic movement of the 1960s and 1970s.”

The seeming paradox is that the US feels it can displace basic freedoms in the interests of prosecuting its “war on terror”.

It is precisely because terrorism is such an horrific threat that there has been no shortage of rhetoric aimed at justifying lower standards for all suspected terrorists.

Professor Lawrence Tribe of Harvard Law School put it this way: “It may be right, in more normal times, to allow 100 guilty defendants to go free rather than convict one innocent one, but we must reconsider that arithmetic when one of the guilty may blow up the rest of Manhattan.”

This is dangerous logic. And it's not just American logic. It was used by the British in Northern Ireland to justify internment-without-trial in the 1970s, and also by the Dublin government for the introduction of emergency powers legislation and Section 31 of the Broadcasting Act, also in the 1970s.

“My definition of a free society is a society where it is safe to be unpopular," declared the American politician Adlai Stevenson, who was once a contender for the White House. Would he be able to stand over this definition in post-September 11 America?

New York columnist Jimmy Breslin thinks not: “There is freedom of speech in America, but people are afraid to use it.”

IF THE world has changed since 9/11, one of the disturbing manifestations of the new order is the emergence of what some call New McCarthyism in the United States, where opening one’s mouth can get you labelled “anti-American”. Or worse.