4
The Freest Nation in the World?
We have a collective responsibility as citizens of the greatest and freest nation in the world.
A Charge to Keep, p. 240
The freest nation?
George W. Bush has often expressed a belief that many Americans share: the United States is ‘the freest nation’ in the world. But as a newcomer to the US who has lived most of his life in other liberal democracies, it isn’t at all obvious to me that the United States is a freer nation than Australia, Canada, the United Kingdom, or the Netherlands, to give just a few possible rival candidates. Freedom can mean many things: that there is freedom of speech and thought, that people can associate with whoever they like, and come and go as they please, that no one can be imprisoned without a fair trial, that each citizen has an equal voice in who governs them, that the government leaves people alone as long as they do not harm others, that people have the opportunity to realise their potential and prosper in the way they choose. These aspects of freedom are different in kind, and there is no single scale on which we can measure the extent to which one country is more free than another. In any case, our focus is on Bush’s understanding of the value of freedom and the protection of individual rights, rather than on whether the United States really is the freest nation in the world. Nevertheless, at least since Bush became president, the two are linked. If Bush is not a true champion of freedom, then it becomes considerably less likely that the country over which he presides can truly claim to be the freest nation in the world.
A philosophy that trusts individuals
When Bush was a candidate for the presidency, his view of the state seemed clear. One of his most constant refrains was that he believes in ‘the power of each individual’ and is opposed to big, remote governments. This, he said, is part of what he means by ‘compassionate conservatism’:
My philosophy trusts individuals to make the right decisions for their families and communities, and that is far more compassionate than a philosophy that seeks solutions from distant bureaucracies. I am a conservative because I believe government should be limited and efficient, that it should do a few things and do them well…I am a conservative because I believe government closest to the people governs best.97
This paragraph suggests two distinct elements to Bush’s philosophy of government. Firstly there is a focus on leaving as much as possible to individuals, and secondly there is an emphasis on government that is close to the people rather than remote from them. In the context of a federal system of government, the first of these suggests that government at both state and federal level should leave as large a sphere as possible in which individuals are free from government interference. The second element suggests that where it is not possible to leave individuals alone, the federal government should seek, whenever it can, to avoid interfering with decisions made by state governments. Bush referred to both these elements in his inaugural address as Governor of Texas:
‘Texans can run Texas,’ I told my fellow Texans.‘I will ask the federal government to return to us the power to set our own course. My guiding principle,’ I said,‘will be government if necessary, not necessarily government.’98
Bush hammered the same themes again and again, in a variety of different contexts, before he became president. In the presidential debate at Wake Forest University, he said: ‘I don’t believe in command and control out of Washington, D.C.’99 In the next presidential debate, at Washington University in St Louis, he said that he was opposed to a national health scheme because ‘I don’t want the federal government making decisions for consumers…I trust people; I don’t trust the federal government. I don’t want the federal government making decisions on behalf of everybody.’100 On ‘The Larry King Show’, in response to a question about a hypothetical state vote on gay marriage, he replied: ‘The states can do what they want to do. Don’t try to trap me in this states’ issue.’101 To an inquiry about South Carolina flying the confederate flag outside the state capitol, he declined to give an opinion, beyond saying: ‘I trust the people of South Carolina to make the decision for South Carolina.’ Asked what he thought about the medical use of marijuana by people who were ill and found that it helped them, Bush replied:‘I believe each state can choose that decision as they so choose.’ (A spokesperson for the Marijuana Policy Project, a lobby group for medical marijuana, praised Bush’s position as ‘courageous’ and ‘consistent on states’ rights’.102 ) Finally, in promoting his plan for a big tax cut and criticising Gore’s more limited proposal, Bush accused Gore of supporting ‘big, exploding federal government that wants to think on your behalf ’.103
Hostility to government in the name of promoting freedom is a distinctively American philosophy, particularly when it is part of a conservative, rather than left-anarchist, outlook. In the nations of the European Union, or in Canada, Australia and New Zealand, conservatives often favour a paternalistic government that ensures that people do what is right (in the opinion of the conservatives) in their private lives. On Liberty, the finest defence of individual liberty against government interference in the English language, was written by the liberal utilitarian John Stuart Mill. In opposition to conservatives who wanted to use the power of the state to stamp out prostitution, sodomy and suicide, Mill urged that the state should restrain individual liberty only to prevent harm to others. It was, in his view, wrong for the state to interfere with an individual ‘for the good of the individual’, whether physical or moral. For a century after the publication of On Liberty, conservatives in both Britain and the United States resisted Mill’s view, defending laws that restricted individual liberty in circumstances that could not be shown to cause harm to others—for instance, laws that intruded into the bedrooms of consenting homosexuals, that made prostitution criminal, or that restricted the access of adults to sexually explicit films, books and magazines.
Since Bush has been so plain in his identification of conservatism with limited government and with fostering individual responsibility, we might assume that now these battles between liberals and conservatives are over. The Bush administration, one imagines, would seek to limit the power of the federal government, and promote maximum freedom for adults to make their own decisions in matters that do not harm others. But soon after Bush took office, his belief that ‘government closest to the people governs best’ was severely tested—as was his commitment to trusting individuals.
Choosing how to die
In 1994 a majority of voters in the state of Oregon approved a proposal to allow physicians to prescribe, but not to administer, a lethal dose of drugs to patients who are terminally ill. Two doctors must confirm that the patient is likely to die within six months; the patient must be informed and mentally competent, and must make three requests, two oral and one written, for assistance in dying. The requests must be at least fifteen days apart.
Opponents of the new law took the state of Oregon to court, delaying the law’s implementation. Three years later, they succeeded in getting the issue placed on the ballot again. But despite a well-funded campaign against the law by pro-life organisations, mostly drawing their support from Roman Catholics and other conservative Christians, Oregon voters reaffirmed their support for physician-assisted suicide, by a considerably larger majority than in 1994. Further attempts to stop the law through the courts failed when the Ninth US Circuit Court of Appeals held that the law was constitutional and the US Supreme Court refused to hear an appeal. The law went into effect, and has allowed those who make use of it to end their lives in a manner they consider dignified. There is no evidence of abuse or a ‘slippery slope’ to less justified uses of physician-assisted suicide. The number of people making use of the law has remained small. Between 1997, when the law took effect, and 2001, 198 lethal prescriptions were issued, according to state records, and 129 patients used their prescriptions to end their lives. The overwhelming majority of them had cancer and their median age was sixty-nine.104
After losing twice at the polls and failing in the courts, the opponents of the Oregon law turned to that ‘distant bureaucracy’, the federal government. The use of prescription drugs, including the drugs prescribed by physicians to patients seeking to end their lives, is controlled by federal regulations. President Clinton’s attorney-general, Janet Reno, was asked to rule that it was illegal for a physician to prescribe federally controlled substances for the purpose of allowing patients to end their lives. She said that she could find nothing in the federal laws governing prescription drugs that forbade their use for this purpose, and did not make the requested ruling. Oregon’s law therefore remained in operation.
Few decisions can be more closely tied to people’s individual values than when and how their lives shall end if they should be terminally ill. Some will seek to prolong life by all possible means, others will reach a point at which they decline further medical treatment, and a third group, burdened by illness and with no reasonable prospect of recovery, will want to take death into their own hands. This would seem exactly the kind of situation in which a philosophy that trusts individuals to make the right decisions really is ‘far more compassionate than a philosophy that seeks solutions from distant bureaucracies’. Someone who opposes a national health scheme because he doesn’t want the federal government making decisions for consumers should also support the right of health care consumers to make the crucial decision when they want to end their lives. Similarly, a state governor who thinks that Texans can run Texas should presumably also believe that Oregonians can run Oregon, and deplore attempts by the federal government to take from Oregon powers that it still has. For all these reasons, and whatever his personal views about the rights and wrongs of physician-assisted suicide might be, one would expect Bush’s administration to follow the path set by Clinton’s, thus keeping the distant federal bureaucracy from hindering procedures that the voters of Oregon had already twice supported, and at the same time keeping the federal bureaucracy out of the lives of individual Oregonians.
Contrary to that very reasonable expectation, on 9 November 2001—a time when he surely had issues of greater urgency to contemplate—Bush’s attorney-general, John Ashcroft, reversed Reno’s decision and asserted that federally controlled substances could not be used in physician-assisted suicide. Ashcroft’s decision was not based on any change of law since Reno’s decision. Instead it rested on a dubious legal opinion from the Justice Department, which in turn relied on the decision of the Supreme Court in United States v. Moore, the case of a doctor who was, in effect, acting as a drug dealer, prescribing addictive drugs on request without medical grounds, and charging his patients on the basis of the number of drugs prescribed. The doctor’s right to prescribe drugs, the court said, holds only ‘within accepted limits’ and when the drugs are prescribed ‘in the course of professional practice or research’.105 But the Oregon doctors who prescribe drugs for terminally patients who want to die are doing so as part of their professional practice, and they are doing it within limits that are accepted by the majority of Oregon voters. Ashcroft’s opinion mounts a case against the Oregon law only by insisting that the idea of ‘accepted limits’must mean accepted at the national level rather than at the state level—precisely the kind of idea that a proponent of state’s rights should vigorously resist.
Another part of Ashcroft’s opinion appeals to a 1984 amendment to the Controlled Substances Act, the law regulating controlled drugs, that allows the attorney-general to revoke a doctor’s federal licence for acts inconsistent with the ‘public interest’. This amendment was also concerned with abuse of the drug laws, and had nothing to do with physician-assisted suicide. Moreover, there is ample legal precedent for the view that the determination of the public interest, in regard to health care, is properly the province of the states. The Justice Department assumes that decisions about what is or is not in the ‘public interest’ cannot be left to the states, but must be decided in Washington, and is better decided by a single unelected official—the attorney-general—than by the voters or by the legislature. This is in direct opposition to the view of the US Supreme Court which specifically upheld the states’ role in the area of physician-assisted suicide in its 1997 decision,Washington v. Glucksberg. Ashcroft was, as an amicus brief filed by a number of bioethicists and lawyers against the attorney-general put it, ‘hijacking an unrelated statute in order to capture new powers for the federal government’.106
How did the champion of trusting individuals and staunch opponent of distant bureaucracies and champion of states’ rights view his attorney-general’s decision? Ari Fleischer, the president’s press secretary, said:‘The president believes that we must value life and promote a culture that respects the sanctity of life at all its stages,’ adding that Bush ‘opposes physician-assisted suicide’ and ‘believes it is the proper role of the federal government to regulate controlled substances such as narcotics or other dangerous drugs’.107 The reference to ‘narcotics or other dangerous drugs’ obscures the issue, for while the drugs patients use to end their lives may be narcotics, the same drugs are already used to relieve pain. When prescribed under the circumstances specified in the Oregon legislation these drugs are not going to cause addiction, are not likely to fall into the wrong hands, and pose no danger to anyone other than the person who chooses to take them, fully understanding their effects. It is difficult to see why a president with a philosophy of trusting individuals to make the right decisions would not allow terminally ill, mentally competent individuals to decide when they have had enough and wish to die.
In any case, Fleischer’s comment fails to address the issue of federal–state relations. The point is not whether Bush supports or opposes what Oregon decided to do. The point is whether the issue should be decided by the voters of Oregon, or by a Washington-based federal official. A president can hardly claim to be a supporter of the rights of states to run their own affairs if he only allows them to pass laws that he personally supports. Just as genuine supporters of free speech must defend the rights of people to express views they consider obnoxious, so Bush’s support for states’ rights should lead him to defend states that pass laws with which he disagrees.
I happen to think that terminally ill people should have lawful access to the help of a physician to end their lives, if that is their considered wish. Nelson Lund, a professor of law at George Mason University’s school of law, does not. But as a supporter of James Madison’s idea of federalism, he also thinks that Ashcroft is wrong to attempt to thwart the Oregon legislation. Writing in Commentary, he pointed out that, no matter how bad the effects of legalising physician-assisted suicide may be, ‘they will be visited almost entirely on Oregonians, and will not threaten the citizens of other states’. Oregon’s policy will only spread to other states if the people of those states are persuaded that the Oregon experiment is a success. This in itself is a reason for federal restraint. In fact, Lund says, as far as the case against federal intervention is concerned,‘physician-assisted suicide is a pretty easy case’.108
The Oregon governor, John Kitzhaber, called Ashcroft’s ruling a ‘slap in the face to Oregonians’ and ‘an unprecedented federal intrusion on Oregon’s ability to regulate the practice of medicine’. Subsequently Ashcroft got his own face slapped when US District Judge Robert Jones of Portland, Oregon, ruled that the Justice Department ‘overstepped its authority’ in attempting to nullify Oregon’s physician-assisted suicide law. In granting Oregon state officials a permanent injunction against Ashcroft’s ruling, Jones wrote that the federal government is not authorised to ‘act as a national medical board’ and regulate how doctors treat patients.109 Justice Department officials have appealed the decision.
Choosing what drugs to take, and who to marry
During the 1999 election campaign, as we have seen, Bush said that he would allow the states to decide on the medical use of marijuana, and he also handled a question on gay marriage by saying,‘Don’t try to trap me in this states’ issue.’The medical use of marijuana issue was the first to put his words to the test. By 2000, eight states—California, Alaska, Arizona, Colorado, Hawaii, Maine, Oregon and Washington—had decided in favour of allowing people who were ill to take marijuana, under some circumstances. California’s voters, for example, had approved a ballot initiative permitting the cultivation and use of small amounts of marijuana for medical purposes. Once in office, however, Bush appointed Asa Hutchinson to head the Drug Enforcement Agency, and Hutchinson soon acted in ways very different from Bush’s words. Granted, in contrast to Ashcroft’s attack on Oregon’s physician-assisted suicide law, Hutchinson acted in accordance with federal law, which prohibits the use of marijuana. The United States Supreme Court had held that the medical use of marijuana was not exempt from this law. So Hutchinson, and Bush, could say that they were merely enforcing the law. Nevertheless, if Bush had been true to his frequent statements of support for individual liberty—and to his explicit pre-election statement on the issue—he could have shown leadership and asked Congress to amend the law, as he has asked it to enact or change many other laws, with a high rate of success. He could also, given his focus on improving homeland security and fighting terrorism, very reasonably have decided that the weeks following September 11, 2001, was not the time to worry about sick people taking marijuana.
Instead, under the Bush administration there have been raids involving dozens of federal government agents on co-operatives that distribute marijuana to people who are ill.110 In classic ‘distant government’ style, the raids were carried out by armed federal agents who did not inform state law enforcement officials of their plans. After a co-operative in Santa Cruz that had been scrupulous in following Californian law was raided and two of its organisers arrested, California Attorney General Bill Lockyer commented,‘A medical marijuana provider such as the Santa Cruz collective represents little danger to the public and is certainly not a concern which would warrant diverting scarce federal resources.’111 It seems hard to disagree with that statement.
The issue of gay marriage arose after Canada had opened the way to same-sex marriages, and Vermont recognised a ceremony, separate from marriage, for gay unions. In response to a question at a press conference about his attitude to homosexuality, Bush said that he believed ‘marriage is between a man and a woman’ and added that he thought ‘we ought to codify that one way or the other’ and he had lawyers looking at the best way to do that.112 The statement was widely understood to express support for a constitutional amendment to rule out same-sex marriages, and Bush did nothing to rebut that understanding. His close ally, the Republican Senate Leader Bill Frist, already supports such an amendment. But marriage has always been an issue handled by the states—as Bush himself said when he was campaigning for the presidency. No genuine advocate of small government would seek to take from the states the right to decide whether people of the same sex can marry.
The environment
One area in which Bush has lived up to the pledge to cut back the role of the federal government is the environment. Under Bush, the administration has proposed rules removing federal controls over up to 20 per cent of the country’s wetlands, which means that many developers will no longer require a federal permit before filling in wetlands. Although officials said that their action was a response to a Supreme Court decision limiting the scope of the Clean Water Act, the administration’s response seemed to go well beyond what was required by the Supreme Court’s decision. Similarly, the administration supports more local control over the 436 million acres of public land under the authority of the Department of the Interior. Gale Norton, Bush’s appointee as secretary of that department, has spoken in support of the governors of Western states who want more mining and drilling on federal lands in their region, and she has explicitly rejected new rules introduced under the Clinton administration—after three years of public hearings—that gave the federal government a veto over any mine that threatened ‘irreparable damage’ to the environment.113 She also declared that she would end reviews of Western landholdings to ascertain if they have wilderness values—thus at a stroke releasing more than 200 million acres of federal land for potential development, at the discretion of the states.114 Another result of listening more to local interests is allowing more off-road vehicles into fragile landscapes. The Bush administration has rescinded rules developed during Clinton’s presidency to phase out snowmobiles from Yellowstone National Park, and it plans to reopen sensitive federal lands in southeastern California to dune buggies. After a New York Times editorial criticised these decisions, pointing out that public lands are owned by all of us, not just the locals, Norton responded by reiterating her support for local involvement:‘We are at a time when we must move beyond command-and-control and punitive approaches,’ she said in an article published in the New York Times for Earth Day 2002.115
Under the Bush administration, the federal government has played a reduced role in enforcing environmental protection. In his first budget submission to Congress, Bush proposed cutting the Environmental Protection Agency’s enforcement staff by 225 positions. Congress rejected that move, but during the first two years Bush was in office, the EPA nevertheless lost 100 positions by attrition and non-replacement. The average fine levied by the EPA dropped from $1.3 million under Clinton to $600,000 under Bush, and the monthly average total of fines levied, excluding the Superfund toxic waste program, fell from $10.6 million under Clinton to $3.8 million.116
Eric Schaeffer, who had directed the EPA’s Office of Regulatory Enforcement since 1997, was so dismayed by the way in which the Bush administration undermined his office’s efforts to enforce the Clean Air Act and other national environmental legislation that, after a little more than a year of attempting to work under the Bush administration, he quit. Among the ways in which Bush’s appointees have thwarted proper enforcement, he says, is their attitude that ‘what little environmental enforcement is necessary should be left to states’.117 This approach, according to Schaeffer, is not the way to get environmental legislation enforced properly.
First, many states, especially in the south and west, are hostile to the very idea of enforcing many environmental laws. States are consistently more lenient to big corporations than the federal EPA. Even if they do want to enforce the laws, with the exception of the largest states like New York and California, they don’t have the resources needed for proper enforcement. (Ironically, as Schaeffer points out, when Christine Whitman, Bush’s first head of the EPA, was Governor of New Jersey, she eliminated the state environmental prosecutor and made deep cuts in the state budget for environmental enforcement.) In any case, even for those states that can afford to enforce the laws, it is wasteful to have similar efforts duplicated in several state offices. Since enforcement problems tend to be national rather than specific to particular states—for example, there are similar problems across the country, or at least in many different states, in enforcing controls on diesel engine emissions, emissions from old coal-fired power plants, and pollution from large animal feedlots—it is more cost-effective to use a federal office to put in the thousands of skilled staff-hours that are often needed to bring a successful lawsuit. Then the results of one court victory can, with relative ease, be made to flow through the industry. The main area in which Bush has lived up to his pledge to reduce the power of the federal government is one in which, for anyone who thinks that laws to protect the environment really ought to be enforced, handing power to the states makes little sense.
The rights of American citizens
One aspect of the relationship between government actions and individual liberty is the extent to which governments protect or interfere with a realm of individual freedom for all their citizens. Thus, if the government succeeds in forbidding physician-assisted suicide and the medical use of marijuana, all Americans have lost some freedom—whether they would ever wish to exercise these particular freedoms or not. But there are other ways in which governments can act that have an impact on a mere handful of people, but nevertheless weaken the basic constitutional guarantees that secure the liberties of every citizen.
Tom Paine, the supporter of American independence and author of The Rights of Man, wrote:
He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.118
Since the terrorist attacks of September 11, 2001, Bush’s commitment to freedom has been subject to what we might call ‘Tom Paine’s Test’. Just as the true test of our support for freedom of speech comes when we are asked to defend the rights of some whose views we abhor, so, as Paine points out, the true test of our support for the rights of the individual comes when the person whose rights have been violated is one we consider an enemy.
Bush and Ashcroft consider Jose Padilla to be an enemy of the United States. Padilla was arrested in May 2002 on a ‘material witness’warrant claiming that he was a witness to the crimes committed by Al Qaeda terrorists on September 11, 2001. In accordance with the law relating to material witness warrants, he was assigned a lawyer. The lawyer challenged his detention, and a court hearing on the challenge was set down for 11 June. On 9 June, Bush issued a presidential order designating Padilla an ‘enemy combatant’. Ashcroft announced on national television that Padilla was an Al Qaeda agent, and part of a conspiracy to build and explode a so-called ‘dirty bomb’— not a nuclear weapon, but a conventional bomb that would disperse radioactive material. His arrest, according to Ashcroft, had disrupted an ‘ongoing terrorist plot’. Padilla was transferred to military custody and denied the right to see his lawyer on the grounds that civilian courts no longer had jurisdiction over him. When civil liberties organisations challenged this, the Bush administration contended that it was legally and constitutionally entitled to hold indefinitely anyone it designated as an enemy combatant in military facilities, without access to counsel and without meaningful judicial review, until the threat from Al Qaeda was over.119
The American Civil Liberties Union (ACLU) filed suit to challenge the government’s decision to hold Padilla without filing charges. In its brief, the ACLU argued that Padilla’s detention violates the right to due process of law guaranteed in the Fifth Amendment to the Constitution. That amendment declares that ‘no person shall be…deprived of life, liberty, or property, without due process of law’. The ACLU urged that there is ample authority, going back to an 1866 decision of the Supreme Court in a Civil War case known as Milligan, that the Constitution of the United States applies ‘equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances’. The brief also argued that there is no legislative authority for the executive to detain American citizens, and that, on the contrary, Congress had specifically prohibited such detention. Moreover in the USA Patriot Act, passed after 9/11, Congress only authorised the detention of aliens—not US citizens—suspected of terrorism for seven days, after which the alien must be charged with an offence.120 The idea that Congress had, in authorising the president to use military force against Al Qaeda, intended to allow him to detain US citizens indefinitely would only make sense on the implausible assumption that Congress intended that the rights of aliens should be better protected than those of US citizens.
In December 2002 Judge Michael Mukasy upheld the government’s right to hold enemy combatants, whether US citizens or not, and whether arrested on US soil or not, during the period of hostilities without bringing charges. But the judge ordered the government to produce ‘some evidence’ to support the president’s conclusion that Padilla was engaged in a mission against the United States ‘on behalf of an enemy with whom the United States is at war’. The judge also ordered that Padilla be allowed to see a lawyer for the purpose of contesting the evidence that the government offered. A spokesperson for the ACLU said that the ruling was ‘a crucial rejection of the Bush administration’s claim of almost unbridled power to unilaterally detain an American citizen and hold him indefinitely and incommunicado’. Laurence Tribe, a professor of constitutional law at Harvard University, said that the decision ‘sends a signal to the executive that should discourage the sort of careless or profligate use of the detention power’.121
Like Padilla, Yasser Esam Hamdi is an American citizen. Hamdi was born in Louisiana to a Saudi Arabian father working for Exxon, but returned to Saudi Arabia with his parents when he was only three years old. Unlike Padilla, he was captured in Afghanistan, with a Taliban unit, rather than on American soil, so his designation as ‘enemy combatant’ is less contentious. Nevertheless, the fact that he has been held captive for more than two years at the time of this writing, along with the government’s claim that he has no right to see a lawyer or receive any form of judicial review, again raises questions about the limits of executive powers. Federal judge Robert Doumar, who heard an application on Hamdi’s behalf to have his detention declared unlawful, said that he had tried and failed to find a case of any kind, in any court, where a lawyer couldn’t meet with a client. In that regard, the judge said, ‘This case sets the most interesting precedent…in Anglo-American jurisprudence since the days of the Star Chamber.’122 (The Star Chamber was a court set up by Henry VIII to try his enemies in secret. It was abolished in 1641.) Doumar, a Reagan appointee who was a delegate to three Republican national conventions, granted Hamdi a lawyer, but the Department of Justice appealed and, in January 2003, the US Federal Court of Appeal overturned Doumar’s decision, ruling that a ‘wartime’ president can indefinitely detain a United States citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer. As Elisa Massimino, a director of the Lawyers Committee for Human Rights, said, this is a disturbing decision, ‘in the context of a potentially open-ended, as-yet-undeclared war, the beginning and end of which is left solely to the president’s discretion’.123
For our understanding of Bush’s political philosophy, the truth or lack of truth in the government’s contentions that Padilla has plotted with Al Qaeda to carry out terrorist acts, and that Hamdi is a trained terrorist, are irrelevant. The significance of the cases lies in the Bush administration’s decision to deprive American citizens of their liberty, indefinitely and without legislative authority or any possibility of judicial review. The right to liberty is one of the most basic human rights. For anyone who believes that individual rights and the rule of law are essential elements in a free society, to deprive a citizen of his or her liberty by executive fiat should be anathema. The fact that Bush was prepared to do it, and not only to do it once, hastily, but to allow his administration to go into court, in two separate cases, arguing that it is right to do it, is inconsistent with an ethic that is committed to respecting human rights.
In addition to the ‘enemy combatant’ cases, the Bush administration has held people for several months under a relatively obscure federal law that permits ‘material witnesses’ to a federal crime to be held in order to ensure that testimony is available, before a grand jury or elsewhere. These ‘material witnesses’ do have court-appointed lawyers. Nevertheless, under Bush the Department of Justice has used this provision more aggressively than under any previous government. Of forty-four people found by the Washington Post to have been held as material witnesses, twenty never testified before a grand jury. Some were held for long periods of time. For as long as it could, the Justice Department shrouded the ‘material witness’ cases in secrecy, refusing to say how many people it had detained, to name the detainees, or to indicate for how long they had been held. When a federal judge ordered it to issue this information, the Department appealed.124 Eventually, in response to concerns from Congress, it issued a report stating that the number of material witnesses held in terrorism investigations as of January 2003 was ‘fewer than fifty’. Of these, about half had been held for thirty days or less, but 10 per cent had been held for more than ninety days.125
The rights of non-citizens
Bush has said that America’s ‘greatest export is freedom, and we have a moral obligation to champion it throughout the world’.126 But what kind of freedom has Bush been championing, since September 11? Two months after September 11, Bush announced that military tribunals would be used, at his discretion, to try non-citizens that he declares to be suspected terrorists. As originally planned, these tribunals could be secret. They were to be conducted under special rules laid down by the secretary of defence. The ordinary rules of evidence would not apply, and the offence did not have to be proved beyond reasonable doubt. A two-thirds majority would suffice to declare a defendant guilty and the death penalty could be applied. The only appeal was to the secretary of defence or to the president. Even long-standing permanent residents of the United States could be tried in this way. This announcement provoked an outcry. Conservative columnist William Safire said that Bush’s military order set up ‘kangaroo courts for people he designates before “trial” to be terrorists’ and ‘turns back the clock on all advances in military justice, through three wars, in the past half-century’.127 A prominent Spanish judge pointed out that the European Convention on Human Rights would prohibit European nations from extraditing any suspects to be tried before such tribunals.128
Initially, Bush defended his tribunals by saying that ‘non-US citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life.’129 But the whole question is whether those who the president suspects of planning or committing mass murder really have planned or committed such crimes. If we could take the say-so of the executive branch as reliable proof of guilt, we wouldn’t need to have an independent judiciary at all. Bush, in this statement, appeared to have forgotten that one of the foundations of basic liberties is the presumption that a person is innocent until proven guilty.
In the end, as a result of widespread disapproval from conservatives as well as liberals, the tribunal plan was modified, and at the time of this writing, no one has been tried before them. That Bush could make such an announcement, however, is indicative of either a lack of understanding about what basic human rights require, or a lack of commitment to protecting the human rights of non-citizens. As Ronald Dworkin, an American who has held the chair of Jurisprudence at the University of Oxford, commented,‘If any American were tried by a foreign government in that way, even for a minor offense, let alone a capital crime, we would denounce that government as itself criminal.’130
Although the military tribunals appear to be in abeyance, the United States is, at the time of this writing, still holding more than 600 non-citizen enemy combatants captured in Afghanistan. Since January 2002, they have been imprisoned at Guantánamo Bay, a US military base held on long-term lease from the government of Cuba. The Bush administration asserts that as enemy combatants they have no right to a lawyer, nor to communicate with their families, and the decision to incarcerate them outside the United States has been effective in keeping them beyond the reach of US courts. They have not been charged with any offence, and have had no access to any kind of impartial tribunal. Both the United Nations Human Rights Commissioner at the time, Mary Robinson, and the International Committee of the Red Cross have said that these captives should be declared prisoners of war, and are entitled to the rights of such prisoners under the Geneva Convention.131 The Bush administration denies that they are prisoners of war. But the Geneva Convention also provides that where the legal status of prisoners is in doubt, it should be determined by a competent tribunal. This too, the United States has refused to do.
The detainees are thus, as the British Court of Appeal has put it, in a ‘legal black hole’. That expression was used by Lord Phillips of Worth Matravers in a case brought by the mother of Feroz Abassi, a British citizen detained in Guantánamo Bay, seeking a court order that the British Foreign Secretary should intervene with the US government. The three senior British judges who heard the case agreed that the detention was ‘in apparent contravention of fundamental principles recognised by both English and American jurisdictions and by international law’. It was objectionable, the court said, that Abassi should be subject to indefinite detention in territory over which the United States had exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. Although the court concluded that it had no power to order the Foreign Secretary to intervene, it left no doubt that it considered the conduct of the Bush administration incompatible with the rule of law.132
Bush’s solicitor general, Theodore B. Olson, asserted that there was nothing for the US courts to discuss about the detainees. In effect, the administration was trying to erect a legal fence around the detainess that would keep the courts out, as well as the detainees in, for as long as it pleased. But that strategy was dealt a significant blow in November 2003, when the Supreme Court decided that there was a case to be heard in respect of the Guantánamo Bay detainees, and agreed to consider an appeal from some of the prisoners there. As of this writing, the Court has yet to deliver its verdict.
In addition to those held at Guantánamo Bay, the Bush administration has also mistreated hundreds of illegal immigrants. In June 2003, the Justice Department’s Inspector General Glenn Fine reported on 762 cases involving illegal immigrants held after September 11, 2001. He found that few of them had clear ties to terrorism, and by the date of his report, fewer than twenty-four suspects were still being held, but many had been released only after being held for months in harsh conditions, often without access to lawyers. Most were detained at traffic checks or as a result of anonymous tips. The ground for suspicion, it appears, might be no more than Middle Eastern origin and the fact that they registered a motor vehicle at the same department office as one of the hijackers. Some of those detained were subjected to physical and verbal abuse. Although the Justice Department said it would alter some procedures in the wake of Fine’s report, Ashcroft and his aides also said that they ‘make no apologies’ for doing what they could to deter another attack on America.133
The question of torture
Though imprisoning people for months or years when they have not been charged with any offence is a clear violation of human rights, the treatment of captured alleged Al Qaeda members held for interrogation by the CIA in Afghanistan and on Diego Garcia, a US base on an island in the Indian Ocean, is even more disturbing. Neither reporters, nor military lawyers, nor the Red Cross have access to these prisoners. According to a Washington Post report based on interviews with US national security officials, these prisoners are subjected to ‘stress and duress’ techniques, which include an initial beating to ‘soften up’ the captives, followed by sleep deprivation through bright lights and loud noises, being kept standing or kneeling for hours in spray-painted goggles or black hoods, being bound in painful positions, and, when they were wounded before capture, having painkillers selectively withheld. In some cases, the CIA has handed over prisoners to the intelligence services of nations that have a reputation for violating the human rights of their opponents. The Washington Post quotes an anonymous US national security officer who is involved in such transfers as saying,‘We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.’ Officially, little has been said about interrogation methods, but at a joint hearing of the House and Senate intelligence committees the head of the CIA Counterterrorist Center said:‘There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off.’134
The US State Department, in its annual human rights report, denounces other countries for depriving prisoners of access to lawyers, and for ‘Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment’. Under that heading, it lists sleep deprivation, beatings and tying up in contorted positions as torture techniques. For example, in the 2002 report, released by Secretary of State Colin Powell in March 2003, Jordan is cited for human rights violations in the following terms:
Police and security forces sometimes abused detainees physically and verbally during detention and interrogation, and allegedly also used torture. Allegations of torture were difficult to verify because the police and security officials frequently denied detainees timely access to lawyers, despite legal provisions requiring such access. The most frequently alleged methods of torture included sleep deprivation, beatings on the soles of the feet, prolonged suspension with ropes in contorted positions, and extended solitary confinement.135
About Azerbaijan, the report states:
There were widespread and credible reports that the authorities have withheld medical treatment from selected inmates, especially political prisoners…Authorities severely limited opportunities for exercise and visits by lawyers and family members of prisoners in maximum security prisons. Some prisoners were kept in ‘separation cells’ often located in basements, in which prisoners reportedly were denied food and sleep in order to elicit confessions from them with no physical evidence of abuse.136
It appears that the Bush administration is now doing exactly what its own State Department denounces others for doing. Under the Bush administration, prisoners are denied access to lawyers—indeed in this respect current US practice is actually worse than Azerbaijan’s practices, for access for lawyers and family members of the prisoners held at Guantánamo Bay prisoners is not ‘severely limited’—up until December 2003 it was nil. Like Jordan and Azerbaijan the Bush administration uses solitary confinement. It seems that, like Jordan, its officials tie prisoners up in painful, contorted positions, and like Azerbaijan, they deny a form of medical treatment—pain relief—to prisoners from whom they are seeking information.
In one case, the Bush administration transferred an Al Qaeda suspect to Syria, which has been, according to the US’s own listings, one of the worst violators of human rights. The suspect held dual German and Syrian citizenship, and the German government strongly, but unavailingly, protested his transfer to Syria. Officials said the CIA does not know of any of these suspects being tortured by the intelligence services of the countries to which they are handed, but as one official commented: ‘If we’re not there in the room, who is to say?’ Although during the Clinton administration, the US cut off contacts and funding with the Egyptian general intelligence services because of its torture of prisoners, a Bush administration official said:‘You can be sure that we are not spending a lot of time on that now.’137
After the Washington Post published its report, the New York based Human Rights Watch called on Bush to make it clear that US policy does not condone torture, to investigate the ‘stress and duress’ techniques allegedly used by the CIA on some of its captives, to take immediate steps to stop any use of such techniques, and to prosecute anyone involved in their use. The organisation also insisted that the US must not be complicit in torture by handing suspects over to other governments that use such methods. A US government spokesperson responded that combatants are held ‘humanely, in a manner consistent with the third Geneva Convention’. But Bush has not ordered any investigation, and the US continues to deny outside observers or lawyers access to those it detains.138
Failing Tom Paine’s test
The most blatant announcement of an intention to ignore fundamental principles of the rule of law was made by Bush himself in his 2003 State of the Union Address. On that solemn occasion he told Congress and the world that his administration had ‘arrested or otherwise dealt with many key commanders of Al Qaeda’. Then Bush said:
All told, more than 3000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way—they are no longer a problem to the United States and our friends and allies.
The President of the United States was referring to the fact that agents of his administration were killing people without any judicial process at all. He appeared to be proud of that fact. President Gerald Ford had banned secret assassinations by the CIA in 1976, after reports of botched attempts had come to light. Now, as the media had reported a month earlier, Bush has opened the way for the CIA to resume extra-judicial killing. In an example of its actions, six Al Qaeda suspects travelling in a car in Yemen were killed by a missile fired from a pilotless aircraft. One of them was a US citizen.139
The deprivations of liberty and of rights of due process that Bush has authorised and defended place national security ahead of rights so basic that they are usually taken for granted in a society governed by the rule of law. The most plausible defence of these rules is in straightforward utilitarian terms. A utilitarian might claim that the costs to a few innocent people who may be killed or imprisoned because of poor intelligence information are outweighed by the costs to many more innocent people if, because of an overzealous insistence on civil liberties, a terrorist is set free and manages to explode a ‘dirty bomb’ in Manhattan, or to spread the smallpox virus across America. In the case of people detained without trial, Ronald Dworkin has argued that if violations of the right to liberty are to be defended in this manner, we should acknowledge that some of those detained may be being treated unfairly, and do everything we can to minimise their discomfort and suffering. We should also insist that the unfair deprivation of liberty is inflicted on as few as possible—and for this, we would still need some form of due process, so that we can be sure that government does not become arbitrary, careless, or arrogant in its use of power. As Dworkin as put it:‘When we treat individual people unfairly for our own safety, we owe them as much individual consideration and accommodation as is consistent with that safety.’140
If we compare Dworkin’s statement about what we owe to those we deprive of liberty without proof of their guilt with conditions in the US detention camp at Guantánamo Bay, the contrast is striking. For the first few months the prisoners— many of who were, after being held for more than a year, acknowledged to be innocent and released—were kept in small wire-mesh cells, about 2 metres x 2.5 metres in size. The cells had a wooden roof overhead, but the sides were open to the hot afternoon sun, as well as to wind and rain. In that tiny space, the prisoners slept on the ground, with just two blankets and a prayer mat. They also went to the toilet in their cells. They were able to leave the cells only once a week, for a one-minute shower. Then, after months of complaints and a hunger strike, prisoners were allowed to extend the shower to five minutes, and exercise once a week for ten minutes, although the exercise was still within another cage, only ten metres long. At the time of writing (November 2003) most prisoners are still allowed out of their cells only for two fifteen-minute periods each week, to shower and exercise. (The cells have been improved, and supplied with beds and running water.) Some prisoners found themselves confined with other prisoners from different ethnic groups with which they had no common language, and thus for months, were never able to talk to anyone at all. The uncertainty about when, if ever, they would be released was hard to bear. In the first eighteen months of the detention camp, there were twenty-eight suicide attempts.141
Dworkin is surely right to say that if we violate people’s rights to liberty, we must do so in a way that minimises the harm we do to them. The Bush administration has failed to do that in regard to those it is detaining at Guantánamo Bay. But Dworkin’s principle cannot be applied to torture and assassination—there is no way to minimise the harm they do to the person tortured or killed (who has not been convicted in any court, and could be innocent). Utilitarians might, in extreme circumstances, be prepared to defend torture and assassination in the same way that they might defend a violation of due process rights in the hope of preventing a tragedy that could kill and maim millions. But given the propensity of human beings to abuse others in their power, utilitarians could also argue that torture and assassination should be ruled out on the grounds that the slim chance of preventing a major tragedy by the use of these methods is outweighed by the much greater probability of their misuse. Interrogators may come to enjoy the exercise of brutal power over a hated enemy (who, of course, in the case of those held by US forces after September 11, have not, at the time of writing, been proved guilty of any crime). Officials empowered to order secret assassinations wield a frightening power of life and death, unchecked by the extensive judicial safeguards that are required in extradition procedures and criminal trials. They may become callous in the way they use this power, or, with the best of intentions, they may be misled by agents playing a double game (as, in Afghanistan, feuding warlords apparently managed to call in US air strikes against their rivals by telling the US that they were Taliban). So even utilitarians are generally strong supporters of the rule of law, since the long-term consequences of supporting it are almost always better than the consequences of breaching it.
Freedom and the Bush philosophy
Whatever Bush may have said as Governor of Texas, or as a candidate for the presidency, his record as president suggests that neither the promotion of individual rights and freedoms, nor the curtailment of the powers of the federal government, is a high priority for him. When individuals make decisions he thinks wrong—whether it is terminally ill patients who wish to end their own lives, or people who find smoking marijuana helps them deal with illness—he will try to prevent them from acting on their decisions. When states pass laws that allow their citizens freedoms that Bush thinks they ought not to have, he will try to use the power of the federal government to overturn or thwart those laws. The chief area in which he has been ready to support states’ rights and local decision-making is the environment—that is, where he is more sympathetic to the views of state governments and local interests than he is to the policies that federal agencies have pursued.
The only coherent philosophy consistent with these decisions is one that ranks the specific values that Bush is seeking to protect above the values of individual freedom and states’ rights. Thwarting physician-assisted suicide must be more important to Bush than the combined value of trusting individuals to make their own choices and the value of allowing Oregonians to make decisions for Oregon. Something similar must also be true of the value Bush places on stopping the medical use of marijuana.
Despite Bush’s boast that the United States is the ‘freest nation in the world’, I can’t say that I feel any freer as a resident of the United States than I did when living in Australia. To the extent that Bush is successful in forcing Americans to do what he thinks to be right, America will fall behind other nations in terms of freedom. Residents of the Netherlands and Belgium, for example, have more freedom than Americans to choose how they die. In those countries, patients who are terminally or incurably ill, and suffering in ways that cannot be relieved, may ask a doctor to assist them in committing suicide, or to give them a lethal injection. About 2 per cent of all deaths in the Netherlands occur as a result of such a request. A rather larger number obtain the assurance of their doctor that if their suffering becomes unbearable, the doctor will end their lives, but, having received this assurance, they do not find it necessary to make use of it. So this is a freedom that is used by a significant number of Dutch people. (And, despite much propaganda from pro-life groups suggesting that more people in the Netherlands are put to death by doctors without their consent, there is no evidence to indicate that this happens more frequently in the Netherlands than in other countries in which voluntary euthanasia has not been legalised.142 ) The Dutch are also freer than Americans with regard to the use of marijuana. In the Netherlands the possession and sale of small quantities of marijuana is tolerated to such an extent that some cafés have a sign in their window indicating that they sell joints. Admittedly, there are some respects in which Dutch residents are less free than most Americans—it is, for example, not so easy to buy a gun in the Netherlands. To balance up the respects in which the Dutch are more or less free than Americans would take us beyond the scope of this book, and in any case would require argument about which freedoms are more important. By my values, though, the Netherlands comes out as a freer nation than the United States.
It used to be possible to say that the rights and liberties of Americans are more secure than those of the citizens of other countries because they are protected by a written constitution that is upheld by an independent judiciary. Under Bush, it is no longer possible to say this. Basic rights to liberty and due process have been denied, and the Bush administration has resorted to secret assassinations of those it suspects of terrorism.
In the previous chapter, when examining the killing of civilians in Afghanistan and Iraq, we saw that Bush’s support for the right to life is less absolute than his statements about abortion and the rights of embryos would lead one to expect. In this chapter we have found that his support for other basic human rights is highly variable. In allowing government officials to use interrogation methods that the State Department describes, when used by other nations, as forms of torture or as violations of human rights; in abrogating basic rights to liberty and due process; and in resorting to secret assassinations, Bush has shown that he does not regard human rights as inviolable. He is prepared to take risks with the lives and liberties of innocent people in order to protect America from terrorism. He is, it seems, an advocate of absolute rights on some occasions, and of utilitarian arguments—of dubious quality—for overriding such rights on others. His views and actions on freedom and the limits to government lack any clear and consistent philosophical underpinning.