By Brigitte L. Nacos
Too weak to fight and defeat the security forces of states,
terrorists engage in psychological warfare with two particular goals in mind:
first, they aim at frightening, intimidating, and demoralizing the citizenry;
second, they hope to push the authorities in democracies to overreact and
violate the most esteemed democratic values, in particular the rule of law.
There is ample evidence that major terrorist events result in high levels of
public fear and anxiety. This was particularly true in the wake of 9/11. And in
reaction to serious terrorist strikes and threats, whether domestic or
transnational, democratic states tend to curb individual freedoms in the name
of preventing further attacks. In this respect, the response of the U.S. government to the attacks on the World Trade Center and the Pentagon
by a team of al-Qaeda hijackers was no exception. Several weeks after 9/11
Osama bin Laden told al-Jazeera reporter Taysir Alluni with obvious
satisfaction that “freedom and human rights in America have been sent to the
guillotine.” From the perspective of terrorists, success and failure of their
violence are less measured by the number of people killed and maimed than by
the psychological impact on and antiterrorism responses in societies they
target. Terrorists win when they persuade citizens and elites of democracies
that the most fundamental values of their societies, such as openness and
restraints on executive power, are weaknesses.
This week’s 5-4 Supreme Court decision that ruled in favor of Guantanamo Bay detainees’ constitutional habeas corpus right—the right to challenge their detentions in federal court--denied al-Qaeda and terrorists in general a victory in the on-going “value battle” against the United States. Whereas certain provisions of the USA PATRIOT Act as well as “aggressive interrogation,” “extraordinary rendition,” and outright torture practices provided terrorists with ample arguments to question and ridicule America’s commitment to democratic values, the latest majority ruling was a triumph for the very essence of democracy.
The Bush administration insisted all along that “enemy
combatants” in Guantanamo must not be granted constitutionally guaranteed civil liberties and pushed
pertinent legislation through Congress. But by declaring provisions in the Detainee Treatment Act of
2005 and the Military Commission Act of 2006 unconstitutional, the Court
majority affirmed detainees “fundamental procedural protection of habeas corpus.”
Swing Justice Anthony Kennedy who wrote for the majority
(including also Justices Stevens, Souter, Ginsberg, and Breyer) stated
unequivocally,
“The laws and
Constitution are designed to survive, and remain in force, in extraordinary
times.”
In one of two dissenting opinions, Justice Anthony Scalia
sided with the Bush administration’s post-9/11 antiterrorism politics of fear
and threat, when he wrote ominously that the ruling would have “disastrous
consequences” and would cause the death of more Americans.”
The majority is right, the minority (Roberts, Thomas, and
Alito besides Scalia) is wrong. By
upholding the rule of law--even in times of crisis, the Supreme Court stood up
for the strength of democracy.
That’s not what the bin Ladens of the world wish for.
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