Few institutions have been more severely tested in the wake of September 11 than the law. How do we treat suspected foreign terrorists? What is the proper balance between self-defense and the protection of civil liberties? A legal scholar sees an important lesson in how America has responded.
Cries of outrage erupted around the world this past January when the Pentagon released pictures of Taliban and Al Qaeda prisoners shackled, blindfolded by strange-looking goggles, and forced to kneel during their captivity at the U.S. military base at Guantánamo Bay in Cuba. Secretary of Defense Donald H. Rumsfeld’s explanation that such methods were not inhumane and were used only when the men–dangerous terrorist suspects, after all–were moved from place to place did little to still the protests. But millions of Americans, and doubtless many abroad, thought to themselves: So what? It is likely, in fact, that many thought the prisoners deserved far worse. A CNN/USA Today/Gallup poll in early October revealed that 45 percent of those surveyed would approve the torture of captured terrorists who knew details of future attacks in the United States. One prominent American law professor has even suggested that judges be empowered to issue "torture warrants."
There is no evidence that the roughly 300 men held at Guantánamo have been tortured, but there is no question that America since September 11 has experienced a sharp clash of values, pitting freedom against security, and law against politics. Yet the months since terrorists brought down the World Trade towers also show how the United States has come to balance competing constitutional values, and–perhaps paradoxically–the way it has come to recognize the limits of the law as a tool for striking that balance.