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The Freedoms Defended Since 9/11

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“Freedom itself was attacked this morning by a faceless coward,” said George W. Bush on September 11, 2011. “And freedom will be defended.”

President Obama apparently agrees that the U.S. government’s response to 9/11 has been to defend freedom. This past Memorial Day he announced, “From Gettysburg to Kandahar, America’s sons and daughters have served with honor and distinction, securing our liberties and laying a foundation for lasting peace.”

We might wonder which freedoms the U.S. government, under both Bush and Obama, has defended since 9/11.

It doesn’t appear to be the First Amendment’s freedoms of speech and association. Otherwise it would be hard to explain the National Security Letters that forbid their recipients from telling anyone, even a lawyer or spouse, that the FBI is monitoring them. It would be difficult to understand the Bush administration’s “free speech zones” that kept war protesters far from presidential appearances, or U.S. spying on peace activists under both administrations. It would be perplexing that Obama would detain Bradley Manning for the crime of releasing incriminating information about the U.S. warfare state, or that his administration’s officials would hint that WikiLeaks’s project of exposing government wrongdoing should be shut down.

Maybe the government has mostly been protecting Americans’ right to be free from unreasonable searches and seizures. Then again, it would be confusing that both Bush and Obama would stand by the USA PATRIOT Act, which has eroded the Fourth Amendment, forced businesses to spy on their customers and hand information over to the Justice Department, loosened restrictions for wiretapping, and empowered agents to conduct special searches without alerting Americans right away that their property had been searched. It would also be a mystery why both Bush and Obama have stood by the National Security Administation’s power to spy on American telecommunications without a warrant. Then there is the whole question of the Transportation Security Administration, which summarily searches American airline passengers, their luggage, and their persons, forcing them to go through invasive pat-downs and potentially dangerous irradiating “porno-scanners.”

Perhaps the freedom being defended is the long-celebrated right to due process and habeas corpus for those detained by the government. That would be hard to reconcile, however, with the Bush administration’s roundup of hundreds of innocent aliens right after 9/11, the “material witness” doctrine that allowed for indefinite detention without charge, or the “enemy combatant” designation that, when pinned on someone by the president, even on a U.S. citizen, means there will be a total disregard for traditional due process. It would certainly make a puzzle out of Guantanamo, where some detainees have been determined innocent of all wrongdoing but are nevertheless kept detained; and it would be hard to make sense of the military commissions that deprive subjects of both the standard protections of criminal suspects or those of prisoners of war. The secret evidence used in many cases in the last ten years certainly seems to be in tension with the right to confront one’s accuser and the evidence laid against one. And Obama’s very concept of “prolonged detention” and his administration’s fighting the courts on numerous habeas corpus cases are a little bit of an enigma if indeed the right to due process is what our leaders have in mind when they’re waging these wars for our freedoms.

Maybe it’s the right not to be subject to cruel and unusual punishment that Bush and Obama have been defending! Although that would seem to be in conflict with the mistreatment of whisteblower Bradley Manning, the abuse that continues at Guantanamo, the waterboarding of Khalid Sheikh Mohammed, and the psychological and sexual abuse that became a regular interrogation practice throughout Iraq and other U.S.-controlled areas at the height of the war on terror.

Other freedoms that haven’t seemed to be enhanced, much less defended by the war on terrorism, include the right to travel, financial freedom, the right to bear arms, and the right to a fair civil proceeding against government agents who have violated one’s liberties. Economic freedom hasn’t exactly blossomed since 9/11. Come to think of it, most of the freedoms that have been held as sacred for so long in this country aren’t exactly easy targets for terrorists to undermine in the first place; free speech, due process, privacy, and other such civil liberties are much easier for governments to compromise than for terrorists to take away.

But there is a class of people whose freedom has surely been strengthened since 9/11, as a direct consequence of the wars fought abroad. That would be people at the top of the executive branch, and especially presidents themselves.

The right of the president to wage war unilaterally has been defended against enemies, both foreign and domestic. The right of the president to order torture and get away with it and to cover up for those who perpetrated such acts of barbarism has been secured. The freedom of the president to declare someone an enemy of the United States, and thus be fit to be jailed without any semblance of judicial oversight, or even be killed by a predator drone strike, has been affirmed. The president is now at liberty to spy on people’s communications without even the flimsy standards adopted in the 1978 FISA guidelines.

In short, Bush was right that freedom would be defended after 9/11, and Obama is right to thank soldiers for fighting for “our freedom.” The only confusion comes in thinking these presidents were speaking on the behalf of the American people, when in fact they were speaking only about the small class of Americans known as U.S. presidents, and their freedom to wage war, detain, torture, spy, and execute without restriction.

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    Anthony Gregory is research fellow at the Independent Institute, a policy adviser to the Future of Freedom Foundation, author of The Power of Habeas Corpus in America (Cambridge University Press, 2013), and a history PhD student at the University of California, Berkeley.