Unchecked Police And Military Power Is A Security Threat

Bruce Schneier
Minneapolis Star Tribune, June 24, 2004

As the U.S. Supreme Court decides three legal challenges to the Bush administration's legal maneuverings against terrorism, it is important to keep in mind how critical these cases are to our nation's security. Security is multifaceted; there are many threats from many different directions. It includes the security of people against terrorism, and also the security of people against tyrannical government.

The three challenges are all similar, but vary slightly. In one case, the families of 12 Kuwaiti and two Australian men imprisoned in Guantanamo Bay argue that their detention is an illegal one under U.S. law. In the other two cases, lawyers argue whether U.S. citizens -- one captured in the United States and the other in Afghanistan -- can be detained indefinitely without charge, trial or access to an attorney.

In all these cases, the administration argues that these detentions are lawful, based on the current "war on terrorism." The complainants argue that these people have rights under the U.S. Constitution, rights that cannot be stripped away.

Legal details aside, I see very broad security issues at work here. The Constitution and the Bill of Rights were designed to ensure the security of people: American citizens and visitors. Their limitations of governmental power are a security measure. Their enshrinement of human rights is a security measure.

These measures were developed in response to colonial tyranny by Britain, and have been extended in response to abuses of power in our own country. Laws mandating speedy trial by jury, laws prohibiting detention without charge, laws regulating police behavior -- these are all laws that make us more secure. Without them, government and police power remains unchecked.

The case of Jose Padilla is a good illustration. Arrested in Chicago in May 2002, he has never been charged with a crime. John Ashcroft held a press conference accusing him of trying to build a "dirty bomb," but no court has ever seen any evidence to support this accusation. If he's guilty, he deserves punishment; there's no doubt about that. But the way to determine guilt or innocence is by a trial on a specific indictment (charge or accusation of a crime). Without an indictment, there can be no trial, and the prisoner is held in limbo.

Surely none of us wants to live under a government with the right to arrest anyone at any time for any reason, and to hold them without trial indefinitely.

The Bush administration has countered that it cannot try these people in public because that would compromise its methods and intelligence. Our government has made this claim before, and invariably it turned out to be a red herring.

In 1985, retired Naval officer John Walker was caught spying for the Soviet Union; the evidence given by the National Security Agency was enough to convict him without giving away military secrets.

More recently, John Walker Lindh -- the "American Taliban" captured in Afghanistan -- was processed by the justice system, and received a 20-year prison sentence. Even during World War II, German spies captured in the United States were given attorneys and tried in public court.

We need to carry on these principles of fair and open justice, both because it is the right thing to do and because it makes us all more secure.

The United States is admired throughout the world because of our freedoms and our liberties. The very rights that are being discussed within the halls of the Supreme Court are the rights that keep us all safe and secure. The more our fight against terrorism is conducted within the confines of law, the more it gives consideration to the principles of fair and open trial, due process and "innocent until proven guilty," the safer we all are.

Unchecked police and military power is a security threat -- just as important a threat as unchecked terrorism. There is no reason to sacrifice the former to obtain the latter, and there are very good reasons not to.

earlier essay: CLEARly Muddying the Fight Against Terror
later essay: Insider Risks in Elections
categories: Laws and Regulations, National Security Policy, Terrorism
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Photo of Bruce Schneier by Per Ervland.

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