Conference Presentation, Panel, Fireside Chat
Taking Liberties: The War on Terror and the Erosion of Democracy
- Susan Herman anticipates that political inertia originating in fall 2001 will sustain policies that are ineffective, costly, or counterproductive, with expectations that extraordinary powers will continue to accumulate due to a lack of legislative processes requiring their removal.
- Herman predicts the political landscape makes it unlikely for presidents to retract anti-terrorism powers because retaining them is politically popular, while public focus on economic issues creates insufficient pressure to prioritize civil liberties.
- Herman expresses concern that the "war on terror" metaphor and the acceptance of a global war will erode due process, potentially allowing domestic executions without trials and leading to miscarriages of justice similar to historical lynchings.
- Herman expects that the current massive data collection efforts will not yield proportional results, noting that the government lacks the personnel to analyze the data and that adding more data to the "haystack" does not help find the "needle."
- Herman fears that the lack of transparency and established criteria for targeted killing and drone strikes makes it inevitable that innocent individuals will be designated for assassination, with no known standards to prevent such errors.
- Herman warns that the "war" metaphor and indefinite nature of the conflict could lead to the erosion of due process, allowing the government to execute people domestically without a trial because no standards currently prevent this.
- Herman suggests the technological revolution has shifted public perception of privacy, making citizens less likely to object to government access to information held by private actors like cell phone companies.
- Herman expects that government surveillance, described as more akin to Kafka than Orwell, will cause self-censorship and behavioral changes, such as avoiding specific books or cloud services to evade detection.
- Herman notes that the U.S. spends more on anti-terrorism and national security than all other countries combined, yet the effectiveness of data aggregation remains unclear due to a lack of analytical personnel.
- Herman fears that the dragnet nature of broad powers will inevitably catch unintended individuals, preventing some acts but at a high cost of catching too many others.
- John Eastman argues that the "war model" is the correct paradigm for the current conflict, viewing 9-11 as an act of war rather than a crime, with the Authorization for Use of Military Force functioning as a declaration of war.
- Eastman expects that accepting the war model justifies the detention of combatants without criminal trials, citing historical precedents from the Roosevelt and Lincoln administrations where soldiers were detained for the duration of the war.
- Eastman predicts that the administration's retention of powers stems from legitimate intelligence briefings regarding ongoing threats rather than a desire for power, noting the bipartisan nature of these actions.
- Eastman anticipates that the conflict's indefinite endpoint, lacking a peace treaty, requires a detention model that differs from the criminal justice system, as the enemy is an asymmetric threat that cannot be defeated by traditional troop deployments.
- Eastman expects that treating "unlawful combatants" differently, including the possibility of shooting them on sight, is necessary to avoid encouraging the enemy's tactics and is consistent with how spies and saboteurs were treated in World War II.
- Eastman argues that the war paradigm allows for secrecy and the use of surveillance tools like "sneak and peek" warrants, asserting that disclosure to the public would also disclose information to the enemy.
- Eastman warns that overcorrecting from the 1970s Church Commission era has swung the pendulum too far, and the current focus on prevention is a necessary response to the intelligence failures leading to 9-11.
- Eastman expects that the administration's position is consistent with prior administrations because both are reacting to the same intelligence briefings, providing legitimacy to actions based on the threats faced.
- Eastman anticipates that the "war" paradigm allows the U.S. to treat American citizens who are combatants the same as foreign combatants, including the possibility of execution if they refuse arrest, based on precedents regarding German saboteurs.
- Eastman expects that the government's ability to buy information from data aggregators raises the question of whether they should be allowed to retain and use it, rather than if they can access it.
- Eastman suggests that the "war" metaphor is not a euphemism but a reality, arguing that the conflict is with a group attempting to destroy the American way of life, requiring a different legal framework than the criminal justice system.
- Eastman predicts that if the U.S. accepts that past actions were legal, it can discuss how the new, indefinite nature of the war should change rules regarding Guantanamo, as the criminal justice model is not designed for an enemy that will not sign a peace treaty.
- Eastman expects that the government should be able to keep certain secrets, such as troop movements, and that the publication of classified information violates US statutes, citing historical precedents of prosecuting leaks.
- Eastman anticipates that the war model allows for more aggressive responses to enemies who do not wear uniforms, arguing that treating them with "kid gloves" would only encourage their unlawful tactics.
- Eastman expects that the military is concerned about the lack of a clear theater of war and potential civilian casualties but believes the response must be aggressive to not encourage the problem.
- Eastman notes that the administration's retention of powers is not due to "power hunger" but a natural human instinct to trust oneself with dragnets, distinguishing this from being "venal."
- Eastman expects that the "war" paradigm requires a balance where the U.S. does not become "ridiculous" by doing things that have zero impact, but also does not become weak by giving up necessary powers.
- Eastman argues that the war paradigm justifies the "prevention" paradigm, shifting the focus from punishing proven crimes to preventing potential threats, which is necessary because the conflict is ongoing and indefinite.
- Eastman expects that the war metaphor allows the U.S. to justify secrecy and dispatch in the executive branch, citing Federalist No. 71 arguments that a single individual can operate with the necessary speed and secrecy.
- Eastman anticipates that the war paradigm allows the U.S. to treat the "war on terror" as a "war" in every sense, including the right to detain and kill combatants without the constraints of the criminal justice system.
- Eastman expects that the war paradigm allows the U.S. to ignore the "war on terror" euphemism and treat the conflict as a real war with an indefinite end, requiring a different legal standard than the criminal justice system.
- Eastman expects that the war paradigm allows the U.S. to justify the "sneak and peek" warrants and other surveillance tools as necessary for the war effort.
- Eastman expects that the war paradigm allows the U.S. to treat the "war on terror" as a conflict that is ongoing and indefinite, requiring a different legal framework than the criminal justice system.
- Eastman expects that the war paradigm is the correct framework for understanding the "war on terror" as a conflict that requires a different set of rules than the criminal justice system, including the right to detain combatants without trial.
- Eastman expects that the war paradigm allows the U.S. to justify the "war on terror" as a conflict that is ongoing and indefinite, requiring a different legal framework than the criminal justice system.