Is the driver of an important Al-Qaeda leader a sufficient threat to our national security to justify holding him in prison without charges until the “war on terror” is over? Are we being made safer by torturing a 24 year old Afghani charge with lobbing a grenade into a passing U.S. Special Forces vehicle in Kabul five years ago and also being held indefinitely?
The balance between freedom and security is one of the many characteristics that help define people and nations. A country’s system of justice is meant to enforce law and order (the rule of law as we like to say these days). It administers justice by punishing the guilty and in doing so establishes and enforces incentives for playing by the rules, what ever they are (remember, I am an economist for whom incentives play a central role in behavior). Our system of justice also reflects the balance we feel comfortable with between freedom and security and helps define us as a nation.
The rules that govern when and how people can be arrested, tried, convicted, and incarcerated reflect the desired balance between freedom and security. No system is perfect and no system is capable of punishing only and all of the guilty. In every system, some innocent people are falsely found to be guilty and some guilty people are falsely found to be innocent. Some systems are more efficient than others in reducing both types of errors to a minimum (and I leave to experts to debate the features considered efficient). But for efficient systems (those on what economists call the pareto optimal frontier), you can only reduce the error of setting guilty people free at the expense of convicting more innocent ones.
Every society makes its own decisions about where it wants the balance in the trade off between freedom and security. I think that when we characterize ourselves as the “land of the free, home of the brave,” we are reflecting a preference for more freedom at the expense of some security. As a nation we have developed a system of justice that gives more weight to protecting the innocent than punishing the guilty. In the tradeoff between freedom and security we give more weight to freedom (to safeguards against falsely punishing the innocent even at the expense of setting some guilty people free). Without question this reduces our security some (or at least the security of those not falsely incarcerated). Our social consensus on where to strike that balance shifts from time to time and is often hotly debated, but we have consistently favored the rights of the accused to defend themselves from false charges more than most other nations.
It is pretty obvious, as noted by our founding fathers, that periods of war and unusual danger, increase our desire for security, which invariably comes at the expense of freedom (if we are on the efficiency frontier). Examples are the incarceration of Americans of Japanese ancestry and many restrictions on speech during World War II, and the anti communism of the Cold War. We experienced this quite dramatically following 9/11. Public reexamination of whether we have adjusted the balance between freedom and security appropriately or gone too far is now underway—a demonstration of another strength and safeguard of American culture and institutions (free press and speech).
Guantanamo, the U.S. detention center in the Guantanamo Bay Naval Base in Cuba (Gitmo in military slang), is a huge black mark on the United States not only because the Bush administration authorized the use of torture there and elsewhere, which is a violation of the Geneva Convention to which the U.S. is legally and hopefully morally committed, but also because it represents a huge revamping of our system of justice away from freedom in the name of more security. I do not think what is being done in Gitmo will actual increase our security—quite the opposite—but that is another story.
To glimpse how far we have swung in Gitmo, consider an interview of its first commander in 2002, Major General Michael E. Dunlavey. The interview was conducted by Philippe Sands, a Professor of Law at University College London, and reported in his book: Torture Team: Rumsfeld’s Memo and the Betrayal of American Values Palgrave Macmillan, New York, 2008. “When Dunlavey arrived at Guantanamo, the interrogations had already begun… Planeloads of detainees were being delivered up on a daily basis. Many posed no threat, men who had been in the wrong place at the wrong time; some were very elderly…. By May  Dunlavey had concluded that half the detainees had no intelligence value at all. He reported this to Rumsfeld, who told him to take his problems to [Douglas] Feith… In Feith he met solid resistance to the idea of returning any detainees, so it was on with the interrogations, even if the usual techniques wouldn’t work.” (page 43). See the movie “Rendition,” to see how this works.
Or take the example of Mohammed Jawad, who at the age of 19 “was arrested after a Dec. 17, 2002 attack in which he allegedly threw a grenade into a passing U.S. Special Forces vehicle in Kabul that was on a humanitarian mission.” Guantanamo prison records show that Jawad was subject to a form of sleep deprivation after it had been banned. Air Force Maj. David Frakt, who represents Jawad and moved last week to dismiss all charges against Jawad, stated that: "I think it reflects the abandonment of basic American values of human decency that occurred on a widespread basis in detention operations in the first two to three years of the global war on terror," Frakt said in early June of this year that "What started as an effort focused on a few detainees believed to possess critical intelligence filtered down to ordinary detainees and became routine."
Our usual legal checks and balances have been swept aside for these detainees. They were to be tried by new military procedures (ultimately struck down, in part, by the Supreme Court) unencumbered by inconvenient safeguards. We must ask and decide whether this new balancing of freedom and security is effective (is it really increasing our security) and whether it is compatible with the values we wish to commit to and defend. My answer to both is no.
Our “give me liberty or give me death” forefathers did not fight for independence nor establish our constitutional republic in order to maximize our security. There are some bad people out there—Al Qaeda and others (remember blond haired, blue eyed Timothy McVeigh and the Oklahoma bombing). It is very likely that we will suffer far worse attacks than the twin towers. We can survive them and pick up and move on. But to react with a Patriot Act squared or cubed—to shut down into a protective Garrison state—would be to surrender what we were founded for and have become great because of.
 Josh White, “Detainee’s Attorney Seeks Dismissal Over Abuse” Washington Post June 8, 2008; Page A04