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June
14, 2003
Peru as Our Crystal Ball?
One
Possible Future for America's War on Terrorism
By NOAH LEAVITT
How will history judge the Bush Administration's
efforts to keep Americans safe from terrorists?
Although we are constantly told that
we are fighting a new kind of war, can we find guidance elsewhere
in the world? In this column, I will argue that Americans need
only look at other countries in our own hemisphere to glimpse
where we may be headed if we do not keep a check on increasing
governmental power.
Imagine, for instance, this scenario:
Citing infiltration by terrorist groups within the country, the
president imposes a 30-day state of national emergency, suspending
some constitutional rights and declaring martial law. Police
and the military are allowed to use force to clear roadways,
detain strikers, enter homes without warrants and take a wide
range of actions to restore order.
The president's actions, and the ensuing
actions of police and the military, inspire mass protest. Hundreds
of protesters are arrested after clashing with police. A few
are killed. Labor unions and student groups threaten massive
civil disobedience in protest.
Eventually, the country seems to be calming.
But the experience reminds citizens of the fragile balance between
national security and civil liberties.
Could it happen here? Why not? After
all, it happened in Peru only last week.
The Truest Analogies
For the "War on Terror" Address Terrorism, Not War
Since September 11, many have noted that
America has almost always regretted its curtailment of civil
liberties during wartime. The internment of American citizens
of Japanese descent during World War II is now seen as a national
shame requiring reparations. President Lincoln's suspension of
habeas corpus during the Civil War led to regret, and its restoration.
And, indeed, it seems very likely that
America will regret some of its "war on terrorism"
policies. Indeed, the Department of Justice Inspector General's
report released on June 2 already reveals abuses when it comes
to post-September 11 immigration detention.
The 200-page-plus report admits that
many foreigners detained as part of the government's post-September
11 investigations were held too long without being told of the
charges against them; subjected to "unduly" harsh conditions
of confinement; and wrongly denied access to lawyers during their
first few weeks in detention.
On the whole, despite its acknowledgement
of the challenges of fighting terrorism, the report "found
significant problems in the way the detainees were handled."
Among them was a "lack of precision" in assessing the
suspected terrorists' actual threat.
Other current practices are also likely
to inspire regret. Nevertheless, the analogy to wartime is flawed.
The war on terror is best seen as what it is, a nation's campaign
against terrorism, and not just as a new kind of war.
Moreover, the analogy to war cuts both
ways. While wartime abuses were later regretted, they were in
some cases upheld at the time they occurred. For instance, in
Korematsu v. United States, the Supreme Court blessed the Japanese
internment camps. And the Bush Administration has leaned on the
WWII precedent of Ex Parte Quirin in an attempt to justify using
military tribunals.
Once terrorism is seen as something sui
generis--not as a new kind of war--it becomes clear that America
is not the first nation to try to combat terrorism. It is striking
how little attention has been paid to other countries' experiences
with terrorism. Yet these experiences--not World War II or the
Civil War--may provide the best guidance to the possibilities
and serious risks of anti-terrorism approaches.
The Peruvian Comparison:
Another Diverse, Capitalist Democracy Faces Terrorism
Consider Peru--a democratic, diverse,
capitalist country of 26 million people that has confronted terrorism.
In 1980, a handful of armed bandits took
over a provincial office in a small Peruvian town. Despite this
inauspicious beginning, these guerrillas began a reign of terror.
They killed fellow Peruvians for supporting capitalism, democracy
and organized religion; for voting in elections; for organizing
unions; and simply for being merchants. In exceptionally brutal
ways, the terrorists murdered urban and rural people, and the
native-born and immigrants, all alike.
Such incidents multiplied rapidly, as
did the terrorists' followers. At its peak, the main group of
terrorists -The "Shining Path"--was estimated to have
about 10,000 members. Its leader, Abimael Guzman, was a philosophy
professor-turned-Maoist revolutionary. (Guzman's life is fictionalized
in the new movie The Dancer Upstairs).
By the early 1990s, these radical terrorist
cells had crippled Peru, controlling more than a third of the
country, causing mayhem, and creating an incredible climate of
fear. More than 30,000 people are said to have been killed during
this period.
The Peruvian Government
Cracks Down
Normal police patrols and the judicial
process did not seem to be effective against this terrorist threat.
Judges who ruled against accused terrorists would be killed or
tortured; police could not effectively combat the Shining Path.
In 1992, then-President Fujimori panicked.
In a "self-coup," he closed Congress, shut down the
judiciary, and ordered the arrest of a wide range of governmental
opponents, most of whom had no terrorist affiliations.
In addition, Fujimori ordered heavy-handed
measures to combat the rising wave of bombings, kidnappings and
assassinations. Hooded military judges were given the power to
pass life sentences on defendants for treason based on secret
evidence obtained in equally secret tribunals.
One Peruvian recently quoted in a Los
Angeles Times story commented, "drastic laws were needed--it
was not a normal situation. But the laws were ferocious and terrorism
was not clearly defined. If I got out a red cloth to wipe my
car, I could be accused of terrorism. It was not reasonable."
More than 900 people were tried in military
courts; Guzman, who was captured soon after the draconian regime
was imposed, was one of them. Today, more than 2000 people are
behind bars on terrorism charges. Hundreds now claim that they
are innocent or were wrongly convicted.
At the same time, numerous quasi-governmental
responses were instituted, such as extrajudicial executions of
people suspected of being Shining Path members. Another 7,000
to 8,000 Peruvians were "disappeared" by government
and paramilitary forces.
Many Peruvians Supported
Fujimori's Laws, but the World Complained
At the time, many Peruvians, frightened
and weary of the turmoil within their borders, supported Fujimori.
Yet Peru's harsh laws drew international ire. In particular,
international human rights groups focused on the high level of
secrecy employed, and the refusal to honor due process rights.
In 1999, the Inter-American Court of
Human Rights, the judicial arm of the Organization of American
States, instructed Peru to reform its legislation addressing
terrorism. It noted that Peru's anti-terrorism courts did not
satisfy international and regional minimum standards of due process.
Not surprisingly, President Fujimori,
long a friend of international law, ceased recognizing the Inter-American
Court's jurisdiction over events in Peru. (In 2000, President
Fujimori fled the country. He is now in exile.)
A Recent Landmark
Decision In Peru Condemns A Set of Anti-Terrorism Laws
This international condemnation did have
an important effect, however: Many relatives of the prisoners
began to complain to the Peruvian judiciary. More than 5000 petitioned
the high Court to reconsider the country's anti-terrorism laws.
And ultimately, their efforts bore fruit.
In January of this year, in what has
been called the most important judicial decision in the country's
history, Peru's highest court struck down a wide range of laws
that, in the 1990s, were used to control domestic terrorist groups.
The Court's president said that its ruling brought Peru in line
with international human right norms. The decision is one part
of Peru's broader ongoing effort to deal with the excesses of
its domestic counter-terrorism efforts.
In its decision, the Court declared the
use of military tribunals to try civilians unconstitutional.
It also found that life sentences handed down to Peruvians convicted
of terrorism were unconstitutionally excessive. The Court also
urged a review of sentences once a convict had served 30 years.
One of the overturned decrees made it
a crime of treason for a teacher to speak positively or in defense
of terrorists, which could lead to life in prison. The Court
overturned the decree as an obvious violation of free speech
rights.
The Court ordered the Congress to update
Peru's anti-terror laws to be consistent with the ruling. It
also required retrials for a number of rebel leaders. But at
the same time--recognizing the majority of the Peruvians' fear
of these possible terrorists--the Court also gave Peru's President
Toledo special power to guarantee that the guerrillas did not
find loopholes in the
Court's decision, and end up back on
the streets. For instance, it allowed the government to hold
convicted terrorists pending their case review, and the outcome
of any new trials, so that they would not commit crimes, or flee,
in the interim.
The main governmental opposition leader
said that Peruvian politicians would have to be "imbeciles
or suicidal" not to recognize that the ruling would require
absolute national unity to craft appropriate and constitutional
solutions.
Not only did the prior rulings do terrible
harms to civil liberties, but the need to now retry numerous
persons will impose large costs on the Peruvian government. The
Peruvian Court acknowledged that its ruling could pave the way
for civil trials for more than 800 alleged terrorists who had
earlier been tried by the now-illegal military tribunals. Less
then a week after the decision, more than 100 cases already were
transferred to the country's civilian court.
Some of this cost will be mitigated by
the fact that the Court has allowed evidence gained in the military
court to be used in the new civil cases (even Guzman's, in which
charges were brought in March).
Meanwhile, President Toledo has supported
a Truth Commission to look at the thousands of disappearances
that occurred. In addition, prosecutors are beginning to look
into some cases where government soldiers summarily executed
accused terrorists.
Lessons for the United
States from Peru's Experience
Six main lessons emerge from this story.
Each should have significance for the U.S..
First, the Peruvian high Court's review
of the antiterrorism laws only came about because of the persistent
complaints to the courts by thousands of aggrieved Peruvians.
In the U.S., those who believe their rights have not been respected
by the government, in the course of the war on terrorism, should
complain, and they and those who support them should protest--for
if they do not, change may not come.
Second, insofar as is possible, "war
on terrorism" proceedings should be open, not secret, so
that if there is a basis for complaints and protests, we can
learn it now. The Peruvian high court was right to condemn secret
proceedings and the use of hooded judges. But even now, in the
U.S., the super-secret FISA court continues to act, and closed
immigration hearings in post-9/11 cases have been upheld.
Third, as Peru learned, civil (here,
federal court) justice is preferable to justice imposed via military
tribunals. We do not want to end up in Peru's position of having
to retry every alleged terrorist whose due process rights were
initially violated--and of course, we should try not to violate
due process rights in the first place.
Fourth, international pressure based
on international legal standards, informed the Peruvian complainers
and helped their complaints carry weight. Similarly, international
human rights group should continue to put pressure on the U.S.
when they believe rights have been unduly restricted in the "war
on terrorism."
Fifth, only after a change of national
leadership in Peru was the political groundwork ready for a sweeping
judicial pronouncement condemning the prior government's anti-terrorism
measures. In the U.S., although the Inspector General's recent
report may indicate that the current government has some capacity
for self-criticism, only a change in leadership may lead to a
wholesale reversal of anti-terrorism policies.
Sixth, the Peruvian decision highlights
the need for a strong separation of powers; in particular, it
is important that the judiciary be, and feel, independent from
political pressures. The head of Peru's court said, "you
don't fight terrorism with state terrorism." He continued,
"that's how democracy is. You respect the human rights of
everyone, even terrorists."
Only truly independent judges are likely
to hew to this line, however. In the U.S., we are fortunate to
have federal judicial independence ensured, to some extent, by
the Constitution's provision for life tenure and fixed salaries
for federal judges, who can be removed only by impeachment. Nevertheless,
judges and magistrates need to resist the pressure to sway in
the prevailing pro-security wind, and must hold fast to their
commitment to civil liberties.
On the whole, we can only hope the U.S.
may be able to learn the lessons of experiences like Peru's,
without having first to suffer them. The Peruvian example illustrates
how a nation under terrorist attack comes to regret the due process
violations it once allowed.
If we are lucky, we will change course
now, so there is less that we will later have to regret. A decade
later, Peru is beginning to recognize and undo the harsh measures
taken during its own war on terrorism. But we shouldn't have
to wait until 2013 to do the same.
Do we have the ability to change course,
and protect both rights and liberties--rather than going down
the road Peru took, which led to great abuses? The recent Inspector
General report on detentions give us at least some reason to
hope that we do.
Noah Leavitt,
an attorney, has practiced human rights law in numerous international
and domestic settings, and has traveled extensively in Cambodia.
This article originally appeared on Findlaw's
Writ. He can be contacted at nsleavitt@hotmail.com.
Yesterday's Features
David
Vest
Bush
Roadmap to What?
Ron Jacobs
The Iranian Revolution, Reloaded?
John
Chuckman
The Man Who Wasn't There
Jason Leopold
Six Months Before War White House Silenced Critics of WMD Intelligence
Michael
Leon
Missing Weapons, Shrinking Bush and the Media
Negar Azimi
Ashcroft's Cruel Version of America
Saul
Landau
Shiite Happens
Hammond
Guthrie
Then and Now
Steve
Perry
Bush's Wars
Web Log 6/13
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