By Jessica Szwarcbord.
In the beginning of the post-9/11 era it seemed that no one could stop the United States from aggressively retaliating in any way it wished. A freight train blasting through a new landscape, sculpted by the uncertainty and terror of the catastrophic plane-into-building event that has become a ‘where-were-you-when?’ moment in all of our histories, no matter where we live, to deliver retribution. The USA had been attacked in ‘such a horrific way’ that whatever means the George W. Bush administration deemed necessary were A-okay and publicly supported. Not that the public knew about all of them.
Professor David Cole sketched this kind of backdrop before describing the decade-or-so since 9/11. In the Castan Centre public lecture at Monash University Law Chambers entitled ‘Where Liberty Lies: Civil Society and Individual Rights in America’s “War on Terror” after 9/11’, Cole explained how the freight train was derailed and how constitutionalism found a foothold in America’s Presidential paradigm.
What caused the curtailment of the USA’s aggression and positioning of the President as above the rule of law, he asked (think Watergate)?
It wasn’t the Courts.
It wasn’t Congress.
It wasn’t the people.
It was, Cole explained, a familiar indictment. Just some of the criticisms of the Bush Administration included the use of extreme interrogation tactics and the establishment of secret prisons – poetically known as ‘blacksights’ – in Europe and elsewhere.
… a combination of published secret memos (by the New York Times for example) and pressure from within government, foreign neighbours and trading partners, as well as lobbying by NGOs … led to the Bush Administration’s awkward backflip.
So what caused the government’s curtailment of the above measures? Cole names four responsible actors: NGOs, the media, individuals within government and foreign voices. He explains that a combination of published secret memos (by the New York Times for example) and pressure from within government, foreign neighbours and trading partners, as well as lobbying by NGOs – all holding civil society ideals – led to the Bush Administration’s awkward backflip. For example, Bush pulled some of the detainees out of ‘blacksights’ and put them into Guantanamo: a sort of ironic curtailment.
Obama continued the momentum of Bush’s backpedalling, by, for example, releasing more secret memos, promising to close Guantanamo Bay, and releasing more detainees. However, Cole points out, Obama is not perfect, noting that the ‘material support ban’ (reminiscent of the McCarthy anti-communist era) was passed under Obama’s Administration and criticised for criminalising human rights advocacy when it aided listed ‘terrorist organisations’.
… Obama actually filed against the DC Circuit Court when it ruled that the President’s authority to detain was not constrained by the rule of law.
What the shift towards curtailment shows generally is a constitutionalist trend towards increasing Presidential legal accountability (bring on the rule of law!) – so much so that Obama actually filed against the DC Circuit Court when it ruled that the President’s authority to detain was not constrained by the rule of law.
So what can we draw from this lecture? While Cole said little that has not been said and remained vague on some points, his belief that we need to fortify our civil society institutions was clear. Constitutional theory needs to pay more attention to them; constitutional law needs to create a space for civil society and jealously guard it; and constitutional practice requires that everyone who believes in civil society be engaged. He quoted Cornel West and Roberto Unger to say that hope comes from action rather than causes action. To create a future of constitutionalism – for those who believe in it – is to do more than believe in it: it is through engagement that constitutionalism can be strengthened.
At question time, putting aside idealism and in light of the tragic Newtown shootings, it was evident that minds were occupied by gun control questions. When asked about this Cole was vague but did suggest that the broadcasted images of murdered children may have a tipping effect, nudging the issue over into action. He emphasised that at that point Obama was only committed to a dialogue about gun control not gun control itself. Underlying the already well-made point: we must not just speak but act. It applies to politics, it applies to constitutionalism, gun control, civil rights idealism: action informed by belief propels history in the desired direction, be that towards a ban on assault weapons, the right to be a human rights advocate for a terrorist organisation or a President’s criminal liability. This may be a little vague, like the lecture itself was at times, but in this vagueness lies a nice warming thought that idealism can perhaps produce results.
An article of a similar name to this event by David Cole is available for download at the Georgetown Law website.