Protecting Liberty in an Age of Terror

Vol. 16 No. 3 (March, 2006) pp.211-214

PROTECTING LIBERTY IN AN AGE OF TERROR, by Philip B. Heymann and Juliette N. Kayyem. Cambridge, MA: The MIT Press, 2005. 160pp. Cloth. $40.00/£25.95. ISBN: 0-262-08343-4. Paper. $20.00/£12.95. ISBN: 0-262-58257-0.

Reviewed by Torin Monahan, School of Justice and Social Inquiry, Arizona State University. Email: torin.monahan [at] asu.edu

The policy concerns of our “age of terror” should shock the ethical sensibilities of most US citizens – if not the consciences of all progressively minded people. These concerns include the messy particulars of sordid exceptions: What kinds of torture techniques are permissible, when, where, and applied to whom? Under what circumstances can we assassinate enemies, even if they are not in combat zones? Under what conditions can we detain individuals, perhaps indefinitely, without due process? These are the questions engaged in this book. Many social scientists and philosophers might be intrigued by the social, political, and economic contexts that give rise to policy questions of this sort. Such questions beg a set of meta-questions in response: What does it mean that these are seen as the questions of today? What do they say about our values, the state of democracy, our system of governance, or the Enlightenment project? What do they indicate about how we perceive and valuate others? How do they serve to rationalize the US historical and ongoing complicity in terrorist practices?

Rather than take up these meta-questions, the primary goal of PROTECTING LIBERTY IN AN AGE OF TERROR is to establish clear guidelines for executive powers and their oversight. To this end, Philip B. Heymann and Juliette N. Kayyem persuasively advocate for various methods of accountability, transparency, and “accurate reassessments,” by which they mean that sunset provisions and periodic evaluations should be instituted because “[b]road new executive powers should not be allowed to survive any longer than the extraordinary danger that justifies them” (p.7). Most of the recommendations of the report seem to be reasonable, serious, and well thought out. Examples include: “Without exception, the United States shall abide by its statutory and treaty obligations that prohibit torture;” “Any U.S. person and any person within the United States who is seized or arrested outside a zone of active combat shall be detained only on criminal charges;” “Any requirement that a nonjudicial demand, such as a National Security Letter, be kept secret shall be valid for only sixty days;” and so on.

On the surface, such recommendations appear to prioritize the protection of civil liberties over the predilections of the executive branch (or the military and intelligence apparatuses). Curiously, however, the recommendations are quickly qualified in their explanatory text, providing for all kinds of exceptions. The most often utilized mechanism for qualification is to change the terms of the practices being discussed. For instance, while there should not be any exceptions to the [*212] proscription of “torture,” “highly coercive interrogation” (HCI) techniques may be completely justifiable and legal. HCI techniques could include things like “putting on smelly hoods or goggles, wall standing for long periods of time, subjection to noise, deprivation of sleep, deprivation of food and drink, deprivation of medical treatment” (pp.175-176), and so on. Because these techniques, even in combination, do not necessarily “shock the conscience” or inflict direct physical wounds, according to Heymann and Kayyem, they do not technically count as “torture.”

Similarly, the terms used within other recommendations are open to interpretation and exception. What counts as a “zone of active combat” or an “unlawful combatant?” In most cases, the answer is that the President shall decide (with some additional mechanisms of oversight to assess the legality or necessity of the decisions). These are not simply matters of semantics, however, when indefinite detention, cruel or degrading punishment, suspension of due process, or death may be the outcomes of their subjective interpretation. In my estimation, the “war on terror” is more ontological than geographical; its extralegal operations occur upon bodies within “states of exception” (Agamben 2005), which are quickly becoming the rule. So, while the devil is in the details, the details of this book will probably not challenge most existing state practices or power structures.

The non-threatening tone of the book is intentional, of course. Heymann and Kayyem explicitly call their work “nonpartisan” (p.3) and claim that “[p]olitics is irrelevant” (p.10) to determinations about the effectiveness of security policies. Certainly these statements are inaccurate. Nonetheless, through such overtures of neutrality, readers come to understand that the authors are self-consciously trying to make their recommendations palatable to policymakers in the current political climate. This climate, as I see it, is marked by jingoistic militarism, executive imperialism, and uncritical patriotism. As such, it poses severe constraints upon the kinds of recommendations that the authors can make if they want them to be seriously considered by present-day policymakers. This may be a necessary compromise given the long-term goals of the book, which are to guide security and surveillance policies for decades to come but starting today.

In some respects, the scope of this book is constrained, not only by its politics of “no politics,” but also by its format. This is a detailed policy report that has been expanded in Procrustean fashion to book length. Thus, the body of the book is under 100 pages long. Added to this are two appendix chapters written by different authors (Tom Parker and Thomas Lue, respectively) and a “summary of recommendations,” the details of which are repeated in the main body of the book. The content for this policy report was cultivated through “closed-door” conversations with notable advisors under the aegis of Harvard University’s “Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terror.” The forum giving rise to the [*213] report included seventeen US advisors, such as Robert McNamara, Michael Chertoff, and Rand Beers, along with half-a-dozen “observers” from the United Kingdom.

Heymann’s and Kayyem’s underlying argument is that abuses occur because policymakers and state agents lack clear, unambiguous guidelines:

Rules proscribing the use of torture and other cruel and inhuman treatment by the United States provide little guidance as to the legitimacy of specific interrogation techniques and when they can be used. . . In this context of uncertainty, the use of particular coercive techniques remains and has been subject to serious abuse. On the other hand, the controversy surrounding interrogation tactics in Iraq and elsewhere, and the resulting criminal charges against military personnel, has resulted in a dramatic swing of the pendulum that may discourage legitimate interrogation tactics. (p.31)

In other words, not only is abuse catalyzed by ambiguous policies, but the public and legal backlash that occurs when abuses come to light causes an overcorrection that may detrimentally impinge upon the effectiveness of state agents. Within this explanatory framework, the authors’ recommendations aim to curb abuses and simultaneously enhance the effectiveness of counterterrorism activities.

Unfortunately this logic is undermined by the fact that in the “war on terror,” clear policies and laws are violated right and left, often with impunity. As Thomas Lue writes in Appendix B, “One glaring exception [to US interrogation methods not qualifying as ‘torture’] may be the treatment of prisoners at the Abu Ghraib prison in Baghdad, where the beating and sodomizing of detainees, the unleashing of dogs, and the pouring of phosphoric liquid almost certainly qualify as acts of torture” (pp.162-163). And, although coming to public attention after this book went to press, President Bush’s authorization of National Security Agency (NSA) surveillance of US citizens is in clear violation of the Foreign Intelligence Surveillance Act (FISA). Unambiguous guidelines may be essential, but they alone cannot prevent abuses of power.

Because Heymann and Kayyem accommodate – rather than challenge – the dominant construction of terrorist threats and obligatory responses, they may not provide the critical lens that many scholars of security, surveillance, and terrorism value. That said, this is an important book. It delves into the violent and disturbing particulars of the “war on terror” and tries to provide some rational order. It recognizes that current practices of counterterrorism and interrogation are ad-hoc, particularistic, and wide open to abuse. One may feel, for instance, that any highly coercive interrogation techniques are misguided and morally wrong, but that does not change the fact that so long as they are being employed, interrogators require clear rules and effective oversight. One might also question the potential of guidelines to militate against abuse when those in the highest level of government are unapologetically breaking laws without suffering legal consequence. Still, it is much better to have laws and [*214] policies on the books, so at least there are benchmarks for judging the legality and propriety of state actors and others. PROTECTING LIBERTY IN AN AGE OF TERROR takes political discourse a big step in that direction.

REFERENCES:

Agamben, Giorgio. 2005. STATE OF EXCEPTION. Chicago: University of Chicago Press.

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