A Defense of Civil Libertarianism

A Defense of Civil Libertarianism

Defending civil liberties is not merely a “strategy” or a means to some other end. One can, and should, oppose both torture and endless war.

In response to Samuel Moyn.

In the wake of the terrorist attacks on September 11, 2001, two things happened. The United States went to war against Al Qaeda and the Taliban, and the Bush administration chose to wage that war without regard to the laws of war and human rights. Samuel Moyn argues that civil liberties and human rights advocates erred in focusing their critiques on the latter rather than the former, and that by doing so, legitimized war by cleansing it of its worst excesses. Instead of worrying about civil liberties and human rights abuses, he suggests, the left should condemn endless war.

But arguing that one must choose between opposing “endless war” and opposing human rights violations poses a false dichotomy. There is nothing inconsistent about criticizing endless war and condemning specific conduct that violates the most basic rules governing armed conflict. The laws of war have long addressed both the legality of engaging in war—jus ad bellum—and the legality of the tactics used in an armed conflict—jus in bello. Civil liberties and human rights advocates have in fact consistently opposed both war crimes and endless war.

Consider just four of countless examples. In 2011, the ACLU opposed a provision in the National Defense Authorization Act that, in its view, would have authorized endless worldwide war. It urged its members to “help now by telling your representative to oppose any new and expanded war authority.” In 2013, Kenneth Roth of Human Rights Watch similarly cautioned Congress that “open-ended authorization is dangerous, because governments will be tempted to take the easy path of war rules over the more difficult path of respecting . . . rights that prevail in peacetime.” In 2014, Amnesty International called for repeal of the 2001 Authorization to Use Military Force against Al Qaeda, stating that “[a]rmed groups should be countered through the criminal justice system in compliance with human rights standards.” And in 2015, Michael Ratner of the Center for Constitutional Rights wrote a piece for MSNBC entitled “Congress must stop giving presidents power to make endless war.”

Indeed, far from being overlooked, the concern about endless war has been repeated so often that it has become a cliché. Just as one can be opposed to both the general problem of over-incarceration and the particular conditions of prolonged solitary confinement, one can be opposed to both endless war and the particular uses of torture, renditions, and warrantless wiretapping that characterized this war in its early years.

Moreover, there were sound normative reasons to be...