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 concerned about the particular way the Bush administration conducted the war against Al Qaeda and the Taliban, regardless of how one felt about the decision to use force to respond to the 9/11 attacks. Resort to force was itself neither illegal nor immoral. Both NATO and the United Nations viewed the 9/11 attacks as justifying the use of military force in self-defense, and when the Taliban refused to turn over the 9/11 perpetrators, seventy-six nations supported the war in Afghanistan. While some commentators have objected that war is not a particularly effective response to nonstate acts of terror, no one has credibly maintained that the invasion of Afghanistan was illegal from the outset. If the problem was not the use of force but the way force was used, progressives were right to concentrate on the latter.

Let’s not forget how the United States conducted the war in its early years: disappearing suspects into secret prisons, denying them prisoner-of-war status, authorizing torture and other cruel and inhuman interrogation techniques, and refusing to establish any sort of process to determine whether the individuals it had swept up were in fact enemy combatants. Surely progressives could not stand by and tolerate these abuses on the theory that condemning them might somehow legitimize the war if their criticisms were heeded. To be true to the demands of justice or public morality, one need not be a pacifist. But one must be committed to civil liberties, human rights, and the laws of war.

Finally, many of the critiques of the way the United States has conducted the war are closely intertwined with concerns about the endless nature of this war. Detaining prisoners of war is not inherently objectionable; the Geneva Conventions are predicated on the notion that detaining the enemy—so long as he is the enemy, and he is treated humanely—is a legitimate incident of war. But it is one thing to hold a soldier for the duration of a three- or four-year war that has an end we can foresee; it is another matter entirely, as many have argued, if one cannot even imagine when the war will end. Here, the human rights critique and the objection to endless war converge. President Obama himself observed this in his May 2013 speech at the National Defense University, when he protested having “America on a perpetual wartime footing” because it would “alter our country in troubling ways.” One of the reasons to object to endless war is that what may be tolerable as an exceptional state of affairs becomes intolerable if the war has no end.

Finally, I see little evidence that concerns about civil liberties or human rights have led the left to dampen their critiques of President Obama’s war-making. The ACLU, the Center for Constitutional Rights, Human Rights Watch, and Amnesty International, to name just a few, have strongly criticized President Obama on multiple fronts, including secret targeted killings, the continuation of Guantánamo detentions, his unwillingness to hold torturers accountable, and illegal dragnet electronic surveillance. As noted above, the same groups have simultaneously condemned the endless character of the war against Al Qaeda, its transformation into a war against unidentified “associated forces,” and the spread of war through the use of lethal drones to kill far from any battlefield.

It is certainly true that some on the left, myself included, have been less critical of Obama than of Bush. But that is because, unlike Bush, Obama has not tortured, rendered suspects to other countries so that they can be tortured for us, or maintained secret prisons. Nor has he claimed, like Bush, that his role as commander-in-chief permits him to ignore statutory and international law; on the contrary, Obama has insisted that all his tactics must conform to limits imposed by Congress and international law. Like all presidents, he has used military force where he deemed it necessary and appropriate, but he has also made every effort to wind down the wars in Afghanistan and Iraq. These are fundamental differences between Obama and Bush. To recognize them is not to be partisan, but to be realistic.

Defending civil liberties is not merely a “strategy” or a means to some other end. Human dignity, liberty, privacy, and freedom from torture are ends in themselves, principles to be defended for their own sake. It would be wrong, even immoral, not to object to grave human rights abuses on the wholly unsubstantiated and unrealistic hope that somehow by doing so, one might bring an end to war. One can, and should, oppose both torture and endless war.

David Cole is the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center.

This article is part of  Dissent’s special issue of “Arguments on the Left.” To read Samuel Moyn’s counter-argument, click here.