One year ago, I sat on a panel where we were asked, “What should America’s highest priority now be?” One panelist answered, “Protect our interests.” Another said, “Neutralize our enemies.” My answer, then as now, was, “Preserve our values.”
Why? Because there could be no greater proof that the terrorists of Sept. 11, 2001, had changed America for the worse than if they caused us to sacrifice our core values in the name of security.
So, one year later, how have we done in preserving our values? The report card is mixed.
The American people as a whole, I think, have done remarkably well. We have consoled the grieving, memorialized the dead, and girded for the future.
State and local officials, especially in New York and Connecticut, have performed heroically. They have cleaned up ground zero, dealt with anthrax, and responded to false alarms and threat alerts.
Our federal government has been a whirlwind of activity, but in service of more questionable values. Our military conducted a stunningly effective assault on Afghanistan, but too many civilians died, and the fledgling Karzai government remains desperately insecure.
Our Congress speedily and without real debate enacted a few new laws — an Airport Security Bill that has made none of us feel more secure and a so-called “Patriot Act” that increased secret surveillance of our e-mail and greatly expanded the power of the government to approve secret wiretaps, although a special court found that the Justice Department had abused that authority on at least 75 prior occasions.
In the name of security, our executive officials have bent our values. Abroad, they have injured our world leadership on the rule of law by launching a pointless attack on an International Criminal Court that we should be working to mend, not end. They have tarnished our reputation for human rights leadership by embracing dictators who purport to oppose terrorism and by launching dragnet operations at home that have made us less free, but no safer. A lonely bright spot has been our courts, who have guarded the rule of law by rejecting secret proceedings and insisting that detainees receive due process.
The new Office of Homeland Security has yet to demonstrate that it can make our homeland secure. They created controversial military commissions although our standing civilian courts had previously tried and convicted more than two dozen jihad supporters. On suspicion alone, they have placed immigrants in secret deportation proceedings and detained thousands, inside and at the borders, including nearly 600 being held without rights at Guantanamo Bay. This entire roundup has yielded only four new suspects, John Walker Lindh, who plea bargained; Richard Reid, the shoe bomber, who was captured not by the government but by his fellow airplane passengers; and two Americans, Yasser Hamdi and Jose Padilla, who have been held for months in military brigs without criminal charge or lawyers.
And yesterday, after talking of war without the approval of either Congress or our allies, our president finally went to the United Nations to make his case for pre-emptive military action against Iraq. Yet all this talk of military strategy clouds the fact that we still have no political or socio-economic strategy to correct the underlying causes of terrorism: either the festering conflict in the Middle East or the depressing lack of democracy and development throughout the Muslim world.
The bright spots have been the media and the universities, who have recognized that their role is to foster open and robust public debate, and our lower federal courts, who have wisely understood their role as guarding the rule of law and human rights: the federal judge in Alexandria, Va., who demanded justification for why an American detainee has not been charged nor talked to a lawyer; the Washington, D.C., federal judge who demanded that the government reveal the identities of hundreds who were arrested after Sept. 11, 2001; the 6th U.S. Circuit Court of Appeals, which directed that secret deportation proceedings be opened, and the Foreign Intelligence Court, which has questioned the foreign intelligence justification for domestic surveillance.
A year ago, I said that the terrorists had tried to take our freedoms, but they could only succeed if we helped them. On this anniversary, we should acknowledge that we have helped them more than we should and reaffirm that we as Americans must work harder to preserve the fragile but vital American values of law and human rights.
Harold Hongju Koh is the Gerard C. and Bernice Latrobe Smith Professor of International Law at the Yale Law School.