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January 01, 2003

Introduction: Wars and Terrorism Threaten Civil Liberties and Human Rights

by Robert F. Drinan

We extend a special thanks to Renee Jones and Stephen Wermiel, Human Rights editorial board members, for their assistance as Issue Editors of this edition covering laws of war. We are also grateful to Mark R. Shulman, who offered invaluable contributions as an Issue Editor.

Every war prompts Americans to go against the very essence of the Constitution for whose truths they are waging that war: Congress passed the Alien Sedition Act in the 1790s; President Lincoln abrogated habeas corpus during the Civil War; the country adopted restrictions on alleged subversives in WWI; and during WWII the nation interred 120,000 Japanese, half of whom were American citizens. The country eventually repented all of these unfair measures—and gave $20,000 and an apology to each survivor of the camps.

The United States is now in the midst of another burst of xenophobia. Distrust of foreigners has been intensified by a government that has demonized terrorists and, by extension, all who look like them. No criticisms or explanations of this policy are welcome. Those who seek to calm the hysteria and bring a sense of rationality to the scene are brushed aside as appeasers or worse.

Lawyers can perform valuable service by carefully deconstructing the rage and the rhetoric of those in power, which is why this issue of Human Rights is so valuable. The nation’s lawyers, as de Tocqueville noted in the 1830s, can calm the passions of the multitude and redirect the attention of the country to the moral foundations embedded in the nation’s basic legal documents.

The topics covered in this issue bring to mind the struggles I had with the proposed War Powers Resolution as a member of Congress during the 1970s. In the aftermath of presidential abuses of power during the war in Vietnam, Congress sought to grant the president the power to wage war, subject to keeping Congress informed throughout and withdrawing from the conflict after thirty days, unless Congress approved additional action. I voted no on that proposition and again voted no on the conference report. I voted to override President Nixon’s veto of the bill on the theory that it is best to have some restraints when the president wages an undeclared war.

Presidents generally have not followed the War Powers Resolution, but even if they had, the resolution does not provide for the acts the president and the Pentagon have adopted since the September 11 attacks. All of history suggests the United States is now engaged in conduct that the family of nations and possibly the United States itself will lament at a later time. It seems vital to point out that the United States is engaged in unilateral actions that arguably violate international law and certainly undercut the objectives of the International Criminal Court. The ICC has been strongly endorsed by the American Bar Association and, it appears near the end of 2002, will shortly be a binding part of international law, with or without our full participation. It seems clear that the United States should rethink its objections to fully joining the court.

It is necessary to examine the fundamental question whether the United States has legal authority to take nearly 500 men from several Islamic countries as prisoners at Guantanamo. Lawyers can debate whether their status is that of POWs, detainees, or enemy aliens. What do you think would likely happen, though, if Japan, after a terrorist attack on its land, invaded Idaho and seized a number of white extremists who had the alleged goal of eliminating non-whites from the world? Some would say the analogy is faulty, although others would believe they had a point.

Discussion of legal rights and the terror of terrorism does nothing to help the 1.1 billion Muslims in forty-eight Islamic countries to give up their growing conviction that the United States is their enemy. We need lawyers and open debate about the rights of those who are suspected of being enemies of the United States. But more importantly, we need to raise basic moral and political questions about what the United States should be doing to allay hysterical backlash against innocent Muslims and to search for long-range foreign policies that will allay the world’s fears about our intentions.

The United States should adopt a policy of being a friend who shares its legendary resources and wealth with the 800 million persons in the global village who are chronically malnourished. The nation needs a new foreign policy that lives up to the ideals of human rights proclaimed in the United Nations Charter. The United States and all of the 190 nations of the earth pledged in Articles 55 and 56 of the UN Charter that they would help one another attain the newly recognized political and economic rights that now constitute the public morality of the world. This cannot be done so long as the United States relies almost exclusively on its military prowess for its foreign policy. Lawyers of America have to act as moral architects who will restrain the impetuous policies of the government that teach that violence, armed conflict, and military might can solve the moral, spiritual, and human problems that overwhelm much of humanity.

Robert F. Drinan

Robert F. Drinan, S.J., is a professor at Georgetown University Law Center in Washington, D.C., and a former member of the U.S. House of Representatives.