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 email@example.com.