Published in The National Law Journal.
Like all anniversaries, this Sept. 11 prompts us to reflect on what has changed in the past decade. Certainly, the "war on terror" has brought fundamental changes to America's place in the world, our international priorities and our system of laws. But we should also look ahead, with an eye toward what kind of nation we hope to be 10 years from now. Although people may disagree about whether the past decade's changes have made us safer, there is no doubt they have undermined our historical commitment to human rights. Laws and policies once considered outrageous departures from our founding principles are the new normal.
The prison at Guantánamo Bay, Cuba, is the face of America's war on terror. Designed to be outside the reach of U.S. courts, it symbolizes for much of the world that America — when attacked — will ignore the laws and principles we have long exhorted other countries to follow. Thankfully, our Constitution prevented Guantánamo from operating wholly outside the law. In 2008, the U.S. Supreme Court gave the men imprisoned there for years without charge the right to challenge their detention in American courts. President Barack Obama vowed to close the prison and try those held there. Yet, three years later, it remains open. Prisoners with no links to terrorism remain behind bars because no country, including ours, will accept them. The Obama administration has also conceded that it will hold several of the men now at Guantánamo without trial because the evidence against them is insufficient or tainted by torture.
Speaking of torture, 10 years ago who could have imagined that America, a proud architect of the post-War international legal system, would seek to avoid its fundamental prohibition of torture? That it would direct its agents to subject prisoners to waterboarding and transfer them to foreign black sites to be tortured for information?
Obama has taken a firm stance in reaffirming our commitment to the international prohibition on torture enshrined in our domestic law. But this is the commitment of one president. As the debate over whether torture led us to Osama bin Laden's hideout (and former Vice President Dick Cheney's continued cheerleading for waterboarding) show, America's commitment to the prohibition on torture is not secure. The Obama administration must share some of the blame for that. It has blocked attempts to establish an independent commission to examine the Bush administration's systematic approval of torture. And the Justice Department's overbroad assertion of the state-secrets privilege in cases brought by torture victims has (in addition to denying redress for the victims) cloaked the details of the rendition program. By papering over these stories, we have lost an important opportunity to grapple with the full horror of government-sponsored torture and to recommit to its prohibition.
At home, the picture is equally disheartening. The seemingly unending state of emergency brought on by the 9/11 attacks has distorted our laws and our domestic security institutions. The privacy of our homes and our communications has been eroded by a range of new measures. These include secret "sneak and peek" warrants that allow the government to search your home without telling you about it until months later, national security letters that compel banks and Internet service providers to secretly reveal your personal information and the application to ordinary Americans of intelligence-collection techniques previously reserved for foreign spies.
Many of these new laws were sold as emergency measures — they included "sunset clauses" that caused them to expire unless renewed. But once-controversial laws are now routinely renewed, and these broad new powers are now standard law enforcement tools. The number of national security letters, abused widely by the FBI, has doubled in just the past two years. "Sneak and peak" warrants were issued overwhelmingly in drug cases, with less than 1% used for terrorism cases. This is the new normal.
Although all Americans are damaged by these policies, the rights of American Muslims have suffered the gravest injuries through ethnic and religious profiling and the branding of their communities as potential terrorists. A decade ago, it seemed that America had reached a consensus that profiling by law enforcement was both morally wrong and ineffective. Now, this consensus is in tatters. The Department of Justice has officially taken the position that racial profiling leads to "invidious discrimination." But it has refused to bar such profiling in national security investigations or to acknowledge that profiling based on religion or ethnicity is equally troubling. Instead, DOJ has progressively loosened restraints on the FBI. This no doubt assists the Bureau in continuing its practice of infiltrating Muslim community centers, bookstores and mosques to "map" these communities and to search for nascent terrorists. But it also leaves American Muslims feeling as though they are constantly in the cross hairs, a feeling that is only exacerbated by the Islamophobic political discourse of the past couple of years.
This is the human rights portrait of our country today — and we have painted it with our eyes shut to the long-term consequences of the fixes for our immediate fears. It is past time to return to our commitment to the rule of law for everyone, real limits on government intrusion and the principle of nondiscrimination. The first step is to open our eyes to how 9/11 has changed us and to do so, not in a fog of fear, but with the benefit of hindsight and time for reflection.