Ethical challenges in American counterterrorism after 9/11

Ethics and the War on Terrorism

In the wake of 911, the citizens of the United States faced an ethical challenge that was reminiscent of ones that it had faced in the past, but also unprecedented in American history. A faceless, amorphous enemy had attacked mainland America and the nation struggled to determine how to respond to that threat. There was no single country to bomb, no organized enemy to fight, as there had been in prior wars. Instead, the new enemy may have had strongholds in some countries, but the evidence strongly suggested that, in those countries like Afghanistan where terrorists had a large presence, many of the regular citizens were subjected to terror by those groups as well. Instead of killing enemy noncombatants, which had been an acceptable risk in prior wars, going into these countries to seek out terrorists would result in the deaths of non-enemy non-combatants. This changed the nature of the war and blurred the line between enemy and ally.

In addition, the nature of the attack was different than attacks in prior wars. First, the United States mainland had not been attacked in over a century, leading among many Americans to feel that the United States was impervious to attack. In addition, unlike Pearl Harbor, which was an attack on a military installation, the 9-11 attacks were focused aimed at civilians. This attack made all Americans feel vulnerable to attack, regardless of what they were doing. In fact, it seemed as if everyday Americans going about everyday activities were at the greatest danger, making it difficult, if not impossible for individuals to do anything to mitigate the personal threat posed to them.

Finally, unlike many past combatants, the terrorists were substantially different from Americans in a number of notable ways. First, they had a different religion, which was also Abrahamic, but the complicated and violent history between Christians and Muslims made it easy for predominantly Christian Americans to vilify an entire religion, which did not occur in the wake of the Christian-planned and committed Oklahoma City terrorist attack. Second, they generally spoke a different language, even if they spoke English as well. Third, they looked different; the terrorists all had brown skin, and though the men actually responsible for conducting the attack may have looked like the average American, those who planned the attack looked very different from the average American. These factors made it easy to identify the terrorists as other, which is the first step in dehumanizing them and preparing to treat them as something subhuman.

Together, these three elements contributed to a tremendous atmosphere in American society. Many Americans began to believe that an any-means-necessary approach was required to fight terrorism. Certainly this feeling was pervasive in the immediate aftermath of the 9-11 attack, when so many people were in fear of an imminent second attack. In that confusion, many people were more than willing to trade lofty concepts about civil rights and personal integrity for some assurance, however hollow, that their government would keep them safe from another attack. Since the attacks, many Americans have decried the loss of civil liberties that came with much of the post 9-11 anti-terrorist legislation, but the government has had a lingering powerful tool to combat protest; the claim that these laws have helped stifle additional terrorist attacks and that it would endanger national security to give the details of those thwarted attacks. Whether or not this is true is something about which Americans can only speculate, but it certainly seems as if it could be true, which lends some lingering support for the laws that had been created in reaction to 9-11.

Among the post 9-11 governmental policies that are the most troubling has been the three-part embrace of torture as an appropriate weapon in the administration's war on terror. First, the executive branch embraced terror as a legitimate means of interrogation, despite numerous international laws and social mores prohibiting terror. Second, the legislative branch has not reacted to these laws in any meaningful way, instead passing enabling legislation. Third, the judicial branch has yet to pass any decisions condemning torture and calling it unequivocally illegal.

There appear to be four arguments that are consistently used to defend the American use of torture against terrorists and suspected terrorists. The first of those arguments is that "international and constitutional constraints, including those against torture and those requiring due process, do not apply to prisoners that are held outside the territory of the United States" (Gathii, 2004). The second argument is that the prisoners, even those who may be United States citizens, are enemy combatants, and thus not subject to constitutional protections (Gathii, 2004). The third argument is that the 9-11 attacks were so extraordinary that the authority of the President's War Powers arising out of those attacks is beyond the scope of judicial review (Gathii, 2004). Finally, the fourth argument is that most of the prisoners are aliens, and as aliens, "they are not entitled to constitutional and international protections otherwise available to citizens and friendly aliens" (Gathii, 2004).

A central theme in these arguments is the idea that torture may be morally reprehensible, but that it is justifiable under some special circumstances. Those circumstances do not appear to be linked to a single particular characteristic or event, but to a combination of different events. Key in these events is the ability to identify the terrorist or potential terrorists as someone who is other and therefore outside of the normal protections that one would extend to an in-group member. Another key to the justifications is the idea that the risk posed by the terrorists is so extreme that stopping that risk justifies the use of extreme measures.

Torture as a Counterterrorist Strategy

Perhaps the most frequently used argument to support the use of torture against terrorists and suspected terrorists is the ticking-bomb argument. In the ticking-bomb argument, a terrorist is tortured in order to extract information about a primed bomb that is located in a civilian area (Bufacchi & Arrigo, 2006). Torturing the terrorist for information about the location of the bomb presents that possibility of thousands, if not millions, of saved lives, not to mention the prevention of mass destruction. This dramatic scenario is used by many to justify the idea that, at least under some circumstances, torture is permissible. Of course, if torture is permissible under any circumstances, it makes it much easier to justify torture under all circumstances.

The Bush Administration publicly announced its willingness to use torture under circumstances that seemed similar to the ticking-bomb scenario. Of course, it did not use the word torture, but instead used euphemisms like alternative methods and enhanced interrogation methods, but it did acknowledge the use of tactics labeled as torture by other agencies. In September of 2006, President Bush announced the transfer of 14 Al Qaeda captives from CIA prisons to Guantanamo Bay, with the implication that they were being transferred to that facility so that they could undergo enhanced interrogation (McCoy, 2006). In fact, he credited the use of alternative procedures on Abu Zubaydah to get the information required to capture Khalid Sheik Mohammed, a top Al Qaeda operative. The CIA then used alternative procedures to question Mohammed, which Bush credited with stopping a laundry list of terrorist activities, including: Al Qaeda's production of anthrax, an assault on the U.S. Marines in Djibouti with an explosive-laden water tanker, a car bomb attack on the U.S. consulate in Karachi, hijacked passenger planes being targeted at Heathrow, and attacks on U.S. buildings (McCoy, 2006).

However, the reality in that scenario is the same as the reality in most ticking-bomb scenarios; torture did not lead to the revelation of necessary information. In the wake of Bush's announcement, it was revealed that the pertinent information had been obtained prior to the use of enhanced interrogation methods (McCoy, 2006). Moreover, it was revealed that much of the information obtained as the result of torture was actually duplicate information that the government already possessed (McCoy, 2006). While the danger of an imminent threat that could only be averted through the use of torture was given as a reason to validate torture, that characterization simply did not hold up under scrutiny.

Moreover, the reality of a true ticking bomb scenario is so grossly improbable that it is almost impossible that it would ever occur. Four events have to occur in order to come close to the circumstances of the ticking bomb scenario, and the likelihood of each event is highly improbable. First, a law enforcement agency has to apprehend a terrorist sometimes between the setting of a bomb and that bomb's detonation (McCoy, 2006). Second, the law enforcement agencies have to have enough knowledge that they know the apprehended terrorist must have the knowledge necessary to lead them to the bomb or somehow provide a means to stop its explosion (McCoy, 2006). Third, while the law enforcement officials have enough information to know that this particular terrorist holds the key to saving the city, they lack just enough information to need further information from the apprehended suspect (McCoy, 2006). Finally, torture is the best means to try to get this information from the suspect (McCoy, 2006). Taken as a whole, these circumstances are so unlikely to occur that, even if the ticking bomb scenario would justify the use of torture, it has not ever occurred and, therefore, cannot be used to justify torture.

In fact, what many people who advocate in favor of torture fail to acknowledge is that while torture may be guaranteed to elicit information from even the most reticent of subjects, there is no reason to believe that torture will elicit truthful information. The theory behind torture is that, with the application of sufficient pain and fear, people will talk, and that does appear to be true in the vast majority of cases. However, it is more important to wonder what they will say than whether they will talk. In the non-terrorist scenario, "About 25% of wrongful convictions overturned by DNA testing have involved a false confession or admission" (Kelley, 2009). These were not people who were tortured, but whom, nonetheless confessed to crimes that they had not committed due to pressure from interrogating officers. This fact certainly supports the notion that people will give false confessions. According to Steven Martin and Richard Cizik, "The record of torture's ineffectiveness is clear: Experienced military and intelligence officials tell us that torture doesn't work and yields false intelligence. There's also no clear evidence that waterboarding led us to bin Laden. The crucial detail that eventually led American agents to the al-Qaeda leader's doorstep -- the name of bin Laden's personal courier -- was not divulged during "enhanced" interrogations, and 9/11 mastermind Khalid Sheikh Mohammed actually lied about the courier's identity to the agents who waterboarded him 183 times" (Martin & Cizik, 2011). Moreover, it is important to consider the very real risk of intentional false information in the torture scenario. What time and expense is wasted tracking down false information that was uncovered as a result of torture, and which cannot be revealed as false without investigating the information? Moreover, if terrorists give false information under torture, does that not actually decrease the chance of detection and prevention of actual threats?

Finally, torture does not appear to be necessary to apprehend terrorists or suspected terrorists. The Obama Administration, while continuing many of the questionable practices that began under the Bush Administration, has rejected torture as a legitimate means of interrogation, instead relying on other methods of information gathering and interrogation. However, this has not led to a disastrous increase in terrorists incidents. On the contrary, the Obama Administration has been responsible for three key anti-terrorist strikes since implementing a no-torture strategy: the drone strike against Yemeni-American cleric Anwar al-Awlaki, the drone strike against American Samir Khan, and the raid that resulted in the death of Osama Bin Laden (Armbruster, 2011).

Morally Justifiable Constraints and Restrictions on Citizens during a War on Terrorism

While torture may not ever be ethically permissible, even as a counter-terrorism strategy does that mean that a government is not ever appropriate to impose constraints and restrictions on citizens during a war on terrorism? In other words, are other human rights as inalienable as the rights to human dignity and bodily integrity? To answer that question, one must reflect upon whether other rights are as critical to the concept of humanity as the rights to dignity and bodily integrity. In many ways, it becomes clear that not all rights are equal. The Bill of Rights contained in the United States Constitution, while it has become a model for human rights in many ways, was not meant as an outline of the rights of all human beings, but as a specific redress to perceived wrongs by the English monarchy prior to the Revolutionary War. Therefore, imposing constraints and restrictions that violate those rights might be morally or ethically permissible in response to terrorism.

However, while it might be morally or ethically permissible to infringe upon the constitutionally guaranteed rights of American citizens in order to prevent terrorist acts or apprehend terrorists, it would be a critical error to equate that moral or ethical permissibility with legality. There is no clause in the Constitution that gives either the President or the Legislature the power to engage in the type of routine rights violations that have been embraced by both the Bush and Obama Administrations in the wake of 9-11. That these laws have not been successfully challenged speaks to the complicity of the Judicial Branch rather to any underlying constitutionality of the issues. It is very reminiscent of Plessy v. Ferguson, 163 U.S. 537 (1896), in which the Supreme Court determined that consigning African-Americans to non-white trains on public transportation was not a violation of the Equal Protection clause of the 14th Amendment; a decision that was not only morally wrong, but legally wrong, which is why it was later overruled. The reality is that the Courts can get it wrong, and while the checks and balances established by the three- branch governmental structure are meant to prevent overreaching by any single branch, when all three branches are impacted by the same social conditions, one can expect them to make similar mistakes.

Conclusion

While he 9-11 attacks may have been unprecedented in the American experience, the knee-jerk reaction to them, unfortunately, has not been unprecedented. During World War II, Americans were so terrified of the threat of the Japanese that they tolerated and supported the unconstitutional detention of Japanese-Americans who did not even have a theoretical connection to enemy Japan in internment camps. Those these citizens were not, for the most part, subject to torture, they were subject to a routine and governmentally-sanctioned deprivation of their rights as American citizens. This episode is a lingering embarrassment for the American government. The current anti-terrorist legislation is similar. People responded to fear by demanding that their legislators do something to stop terrorism, and that same fear has led the majority of Americans to sit back in silence despite open evidence that these laws are unconstitutional and have had a real impact on non-terrorist activity. The only real question is how many years will have to pass between 9-11 and the realization that these laws, like the internment of Japanese-Americans, are not only unconstitutional, but unethical and immoral for a country based on the idea of human freedoms.