A post-9/11 betrayal endures

James Madison once wrote, “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded because it comprises and develops the germ of every other.� In armed conflict, he argued, “the discretionary power of the executive is extended ... and all the means of seducing the minds are added to those of subduing the force of the people.... No nation can preserve its freedom in the midst of continual warfare.�

Nine years ago today, the roar of falling aircraft and crumbling buildings gave way to the cries of dying innocents, and that tragic cacophony shook this nation to its foundations. The echoes of that awful, unnatural din still resound in unwelcome ways. Who, for example, could have foreseen that it would crowd from our national conversation the quiet wisdom of voices like Madison’s?

The story of how the Bush-Cheney administration rushed to make torture an instrument of national policy in its “war on terror,� and of how it created an international gulag in which to abuse prisoners, is well known. Less remarked on — for reasons that do nobody credit — is the fact that President Obama and his administration have embraced the secrecy and usurpations of power that made possible the Bush-Cheney betrayal of American values.

Obama campaigned on the promise to end torture and shut down the gulag, but the infamous prison camp at Guantanamo remains, trials for accused terrorists have yet to be conducted and the “extraordinary renditions� reportedly continue. (We don’t know for sure because they’re done in secret.) Equally troubling, the White House reportedly has authorized U.S. intelligence agencies to kill Anwar Awlaki, an Islamic clergyman turned jihadist who was born and raised in the U.S. and is now hiding in Yemen. The summary execution of a U.S. citizen is something not even Bush and Cheney authorized.

As former CIA Director Michael V. Hayden told the Washington Times this week, differences between the Bush-Cheney White House for which he worked and the Obama administration on these issues essentially are minor.

“You’ve got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners,� Hayden said. “Although it is slightly different, Obama has been as aggressive as Bush in defending prerogatives about who he has to inform in Congress for executive covert action.�

Another unlooked-for consequence of 9/11 is that reasonable people see issues such as torture and access to legal redress for its victims as difficult questions. This week, a narrowly divided panel of the U.S. 9th Circuit Court of Appeals ruled that those who were tortured in America’s gulag cannot sue for damages because the administration believes their attempt to obtain justice may reveal state secrets.

The notion that evidence may be withheld from public scrutiny for reasons of national security is well established, but the idea that injured parties can be denied legal redress because the executive branch wants the matter kept secret is an appalling novelty.

Thus, the unconvincing agonizing by Judge Raymond C. Fisher, writing for the court’s 6-5 majority: “This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.�

And why, when conflict is irreconcilable, shouldn’t liberty and justice prevail? Since Lincoln’s suspension of habeas corpus in the dire emergency of the Civil War, we’ve recognized that the Constitution is not a suicide pact, but neither is it a dead letter or a promissory note against some idealized future.

The echoes of 9/11 have enabled other malevolent impulses, including the revival of the crudest nativist sentiments now directed at Muslim Americans and fed upon by political opportunists. The transparent viciousness of such bigotry and cynicism of those feeding upon it probably will act as a check on such impulses. At any given moment, Americans may not recall that we all rely on mutual tolerance, but over the long haul, we usually do.

The further descent into the false exigencies of the national security state are different and far more threatening, as the Obama administration’s eager embrace of their cover demonstrates. Our essential liberties survived the Cold War diminished but intact. Now, the “war on terror� is eroding them further in a conflict in which no one seems able to define a final victory.

On this melancholy anniversary, we might want to summon more of Madison’s eloquent wisdom to our aid: “Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.�

[email protected]