Experts Differ Over War on Terror's Impact on Civil Liberties

By Monisha Bansal | July 7, 2008 | 8:23 PM EDT

( - Amid continuing claims that the U.S. government is eroding human rights in its war against Islamist terrorists, policy experts in Washington, D.C., Thursday examined how the campaign has affected due process but found little common ground.

Bruce Fein, chairman of American Freedom Agenda, told a discussion at the Cato Institute that "the main purpose of the federal government is to make us free."

Yet the war on terror, he said, has put American civil liberties at risk with the Bush administration usurping legislative or judicial power, particularly by classifying detainees as enemy combatants and bringing them before military tribunals rather than civilian courts.

"It is the greatest danger to our civil liberties in the post-9/11 world," Fein said, arguing that "freedoms automatically depreciated" as a result of the war on terror.

"Democracy is not self-executing," he said. "If we don't fight for these [liberties] today, whether in court or out of court, they will evaporate."

Fein's American Freedom Agenda describes itself as a conservative group focused on "restoring governmental checks and balances and civil liberties protections under assault by the current administration."

Rights groups have for years been arguing that the anti-terror campaign, launched after al Qaeda attacked the U.S. in September 2001, has eroded human rights. On Wednesday, Amnesty International released a new report on the subject.

Irene Khan, secretary general for the group, said that "ill-conceived counter-terrorism strategies have done little to reduce the threat of violence or ensure justice for victims of terrorism but much to damage human rights and the rule of law globally."

Andrew McCarthy, director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, took part in the Cato discussion but took a stance diametrically opposed to Fein's.

"The main purpose of the federal government, the main job of the federal government - and certainly the president of the United States - is to make us safe so we can enjoy our freedom," McCarthy said.

"There is, and there has always been, a major difference in the way that our law regards the American body politic and the area of the world that is external to the American body politic," he continued. "Due process within our body politic has never ever been regarded as what we owe to the rest of the world."

McCarthy called it an "aberration" to give "unlawful enemy combatants in wartime ... access to the courts of the United States."

"What al Qaeda does, and militant Islam in general does, is flout the laws of war," he said. "It actually undermines the humanity and the humanizing impulses, the civilizing impulses that are behind the Geneva conventions and the assumptions that we have in our laws."

McCarthy added, "Extending the rights of American citizens to enemy combatants is rewarding the barbarity of al Qaeda's behavior. Rewarding that kind of behavior is a guarantee for getting more of it."

But Fein disputed the notion of legal distinctions between citizens and non-citizens. He pointed to Yasser Hamdi and Jose Padilla, two U.S. citizens who were charged and tried as enemy combatants.

"The president has claimed and asserted the authority to identify persons as illegal enemy combatants if they are U.S. citizens - who should customarily enjoy all of the rights of a U.S. citizen, including the right to habeas corpus," he said.

"The administration is conceding [due process] is workable in the domestic sphere and then suddenly changes the rules of the game in some other sphere," Fein added.

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