LAW OFFICES OF ANTHONY P.X. BOTHWELL

[© Anthony P. X. Bothwell 2003]

3 Research Papers 1-2

Human Rights Conflict Prevention Centre, Univerzitet u Bihacu (Bosnia and Herzegovina)

THE LAW AND PSYCHOLOGY OF ANTI-TERROR

By Anthony Peirson Xavier Bothwell [1]

Psychological impacts of the new terrorism have had a dramatic transforming effect on American law in the areas of executive power and civil liberties.

The attacks of September 11, 2001 have had serious and long-term adverse psychological effects on Americans. [2] Citizens traumatized by actual and feared acts of terror have welcomed assertions of strong presidential leadership and accepted infringements on what traditionally have been regarded as fundamental rights. There has been little domestic public debate on whether that leadership is going in the right direction and whether there may be a more effective way to fight terror than by curbing civil liberties and invading foreign countries. The presumption has been that whatever the government does in time of crisis has to be accepted uncritically.

The administration, upon taking office in January 2001, actually cut back on anti-terrorism initiatives, while expanding the military budget (and increasingly conducting government business in secret). After the attacks on September 11, 2001, it pressed hard for legislation to curb civil liberties and announced numerous executive policies violating constitutionally protected rights. At the same time, the administration actually has delayed and diminished investigations of the intelligence failures that allowed the 9/11 attacks to take place. It also has delayed and diminished spending on disaster aid to New York City and on a national program to train and equip emergency workers to respond to possible future attacks involving weapons of mass destruction.

The American people, in a state of shock after 9/11, and disturbed by anthrax mail incidents and threats of new terror, have supported the presidential policies by and large without critical thought. The opposition party, dumbfounded and fearing voter disapproval of any dissent, has failed to make the case that competent intelligence and enforcement of existing laws would be more a more effective strategy than trampling on the civil liberties of the people. In fact, a few prominent Democratic senators, who dared oppose the Homeland Security bill beause it was loaded with frivolous favors for Republican donors, were denounced as unpatriotic and defeated in the November 2002 elections.

Principles of psychology, which explain attitudes and actions of individuals, likewise can explain policies and behavior of communities and nations. The study of communication psychology can illuminate political trends that bring about changes in the law. Public opinion rarely is changed by mere rhetoric or logic. There is a natural human tendency to shut out information that is contrary to preconceived beliefs. Undeniable facts often are repressed psychologically. People tend to deny or refuse to perceive the hardest, most unpleasant information. Thus it is more convenient to contemplate fictions presented by Hollywood than to think critically about government policies in time of crisis. [3] What does change public sentiment is actual events, observable new realities that cannot be denied. [4]

Sentiments and dogmas shaken loose by traumatic events cease to impede policy decisions theretofore unthinkable. New cognitive dissonance has induced voters, legislators, bureaucrats and judges to change fundamental notions about what intrusions on domestic freedom are necessary or desirable to safeguard against acts of mass violence. Politicians in the opposition party have been traumatized by the events of 9/11, anthrax attacks, periodic official warnings of imminent terrorist actions, an amazingly comprehensive assault on civil liberties, and the spectre of electoral abyss for dissidents who might labeled as unpatriotic or worse. In one of the most chilling moments in American history, Attorney General John Ashcroft told a Capitol Hill hearing, “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists.” [5] Whether in spite of or because of the attorney general’s crude attempt at intimidation, there has been precious little public debate regarding major curtailments of personal liberty.

Members of Congress, who temporarily evacuated the Capitol following the 9/11 attacks, acted with unaccustomed haste to approve legislation perceived as doing something about terrorism. The Senate passed the Combating Terrorism Act of 2001, creating new federal offenses and redundant wiretap powers, within 48 hours of the 9/11 attacks. Advocates of Big Brother methods spent years writing the USA PATRIOT Act, [6] which vastly enhances government power to spy on Americans. Elected representatives in Congress passed the USA PATRIOT Act into law so fast that they did not read the 168-page statute.

Despite the system of checks and balances put in place by the framers of the U.S. Constitution, few voices have been raised on Capitol Hill in opposition to post-9/11 claims of power by the Executive Branch. Hundreds of non-citizen residents were disappeared in the United States as the government seized and held them without charges, without allowing them to talk to a lawyer, and without disclosing their identity. The administration bestowed upon itself the power unilaterally to declare U.S. citizens to be “enemy combatants” having no constitutional rights. It asserted the power to eavesdrop on lawyer-client conversations. It claimed the power to create military tribunals [7] to determine guilt and order death sentences of accused persons without affording them some of the customary fair-trial protections. [8] The United States now practices some of the same sorts of rights violations for which historically it condemned autocracies elsewhere.

The administration’s assault on civil liberties has been so sweeping and rapid as to boggle the mind. Political leaders, off-balance and afflicted by post-traumatic stress, have paid no heed to constitutional guarantees of due process [9] and internationally recognized human rights. [10] They have failed to make the case that due process provides a useful assurance that it is the guilty who will be punished, and should not be denied to anyone, anywhere. [11] They have shown no interest in reports of mistreatment of prisoners of war. And they have failed to make the case that public trials in civilian courtrooms can be an effective showcase for the world to see the American system of justice.

In the absence of meaningful debate, little consideration has been given to the idea that effective counterterrorism does not require a totalitarian-style police state, but rather demands more competent intelligence and police work. Each week, hundreds of government employees contact lawyers to report mismanagement in the nation’s campaign against terrorism. Most of these civil servants never go public because, with good reason, they fear retaliation. One who did go public blew the whistle on the Federal Bureau of Investigation’s pre-9/11 failure to follow up on terrorism leads in Minnesota. [12]

An even more shocking story is told by sources who still fear to come forward: On September 10, 2001, local police had information that known terrorists staying in a Boston hotel had tickets on California-bound flights the next day at Logan International Airport. FBI agents told the Boston police to leave the suspects alone, that the FBI knew about them and that it was alright. It is amazing that this could have transpired when other elements of the FBI had evidence that terrorists were training in U.S. flight schools and wanted to use civilian airliners to hit targets such as the World Trade Center. An inference that anyone within our government would have wanted terrorists to strike America would be met with ridicule, but it appears that stupidity had the same result.

The new dissonance drastically has enhanced public readiness to support aggressive military operations abroad as well as incursions on liberty at home. Americans of every ethnic background, interpreting foreign events through a post-9/11 lense, generally have a fear-driven proclivity to accept the clarion call for U.S. leadership of a global war against terror. [13]

It is customary and indeed sine qua non in a democratic society, unlike a totalitarian system, to have robust public debate when government leaders propose unprecedented foreign adventures. However, there has been no public debate in the United States concerning the wisdom of having the Central Intelligence Agency conducting some of the military operations in Afghanistan and the Middle East. Everyone seems indifferent to the fact that CIA officers are not subject to the rules in the Uniform Code of Military Justice. Apparently no-one cares that the CIA has no constitutional authority to perform the functions assigned to the nation’s armed forces.

Senator Robert C. Byrd, for one, protested the tendency of the current administration to send troops to foreign lands without informing Congress. [14] The White House originally said it could launch a war against Iraq without congressional approval, but later said it would request such approval even though it claimed not to need it. Congress approved with little debate. Whether the plan to invade Iraq was a good idea or not, it was a sufficiently momentous matter so that it ought to have occasioned serious deliberation on Capitol Hill. Some critics on the left have argued that American leaders have shown a peculiar inclination to use military force. [15] It is a sign of the psychopolitics of the times that Congress, with barely a whimper, gave the president carte blanche for an Iraq invasion, whether authorized by the United Nations Security Council or not.

The new reality, so suddenly and comprehensively imposed, does not admit of theories other than those introduced by the highest government officials. If someone had wanted to cause American voters to accept a police state in their own country and a militaristic approach to foreign affairs, a more effective catalyst than the 9/11 attacks could not have been conceived. And yet, counterterror acts of the government in turn have triggered psychopolitical aftershocks likely to have reverse consequences for policy and law itself. The pendulum inevitably swings in the yin and yang of American politics and jurisprudence. Mass fear, while opening the door to fascistic policies, at the same time has fostered anguish among those who have been maligned unfairly and those who empathize with their plight. [16] Citizens who are not targets of extreme government tactics eventually begin to realize that the diminution of the liberty of one person diminishes us all. [17]

Acceptance of extreme government actions in the name of fighting terror will have a traumatic effect upon the whole nation, [18] creating new social cross-currents, new cognitive dissonance and potential for popular backlash. The general who directed torture and summary execution of terrorists in colonial Algeria eventually was fined by a French court for defending such methods. [19] The detention of Japanese Americans in prison camps during World War II (allowed because the Supreme Court accepted the Pentagon’s gratuitous and false claim that Japanese Americans were traitors) later became recognized as a constitutional atrocity. Manipulation of antiterror policy by the governing party for political and special-interest advantage is well-known to those who have followed the issues most closely; [20] this game can be expected to become more widely recognized and to have an undermining effect on public support for government policies. The excesses of the current administration, invading human rights (while failing to perform some basic intelligence analysis and emergency preparedness functions), will, sooner or later, lead to public support for a return to the rule of law.

President Lincoln exhibited a wise sense of balance in dealing with domestic insurrection that has relevance to antiterror policy today. In a letter urging the secretary of war to discharge Confederate prisoners of war who wished to pledge allegiance to the Union instead of being returned to the South, Lincoln wrote:

In using the strong hand, as now compelled to do, the government has a difficult duty to perform. At the very best, it will by turns be both too little and too much. It can properly have no motive of revenge, no purpose to punish merely for punishment’s sake. While we must, by all available means, prevent the overthrow of the government, we should avoid planting and cultivating too many thorns in the bosom of society. [21]

[1] B.S.F.S., Georgetown University School of Foreign Service; M.S., Boston University School of Public Communication; J.D., John F. Kennedy University School of Law; LL.M. summa cum lude, Golden Gate University School of Law. The State Bar of California; National Lawyers Guild; American Bar Association; International Bar Association.

[2] “Fourty-four percent of U.S. adults we surveyed reported at least one of five substantial stress symptoms since September 11, 2001; 68 percent experienced at least one symptom ‘moderately’ and 90 percent experienced at least one symptom ‘a little bit.’ …. Catastrophes can have a profound effect on adults who are not physically present. …. The potential for personalizing the September 11 attacks was large, even for those who were thousands of miles away at the time.” Mark A. Schuster, M.D. et al., A National Survey of Stress Reactions after the September 11, 2001, Terrorist Attacks, 345 The New England Journal of Medicine 20 (Nov. 15, 2001) 1507 ff. “The psychological effects of the recent terrorism are unlikely to disappear soon, particularly in the light of ongoing terrorist threats and attacks, the research team warns. As a result, ‘clinicians should anticipate that even people far from any future attacks may have trauma-related symptoms of stress.’” RAND, news release, Stress Reactions to 9/11 Attacks Felt All Across the Country: 44% of Adults, 35% of Children Had Substantial Symptoms (Santa Monica, Calif., Nov. 14, 2001). The strong feelings that adults have regarding acts of terror are intensified by the awareness of the traumatic effects on their children. “Tens of thousands of public-school children in New York City are experiencing chronic nightmares, fear of public places, severe anxiety and other mental health problems months after the World Trade Center attack, a study conducted for the Board of Education found. …[T]he results…surprised researchers because the trauma wrought by Sept. 11 appeared to be quite evenly dispersed through a large geographical area, not limited to the area near ground zero.” Abby Goodnough, Post-9/11 Pain Found to Linger In Young Minds, N.Y. Times (May 2, 2002) A1, A24.

[3] David Davios, a box-office analyst for Houlihan, Lokey, Howard and Zukin, an investment banking firm, found a closer parallel to the current [movie-going] boom in the years immediately following Pearl Harbor. …. ‘Maybe it is really that simple: people like to escape during a crisis.’” Rick Lyman, Moviegoers Are Flocking To Forget Their Troubles, N.Y. Times (June 21, 2002) C1, C6.

[4] “Festinger’s Cognitive Dissonance theory model has perhaps produced the greatest amount of research among the consistency theories. Basically, the elements are any two pieces of information a person has. These are said to be in a dissonant relation to each other when, ‘considering these two alone, the obverse of one element would follow from the other’…. Dissonance, then, induces a motivating force acting either on the nondetermined element, on the relationship between the two elements, or on the person’s ability to tolerate the dissonance. …[D]erivations from dissonance theory predict that with increasing dissonance, the person will seek out ‘consonant’ information to reduce the dissonance and will avoid ‘dissonant’ information that might increase it.” Jack M. McLoed, The Contribution of Psychology to Human Communication Theory, in Frank E. X. Dance, ed., Human Communication Theory: Original Essays (1967) 212-213.

[5] Senate testimony of Attorney General Ashcroft reported by Ron Dylewski, in Ashcroft Defends Antiterror Plan; Says Ccriticism May Aid U.S. Foes, N.Y. Times (Dec. 7, 2001) A1.

[6] Public Law 107-56, 115 Stat. 272, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

[7] President Bush’s order as commander in chief on Nov. 13, 2001 authorizing establishment of military commissions to conduct trials of accused terrorists, apparently written in haste, contained grammatical and typographical errors as well as constitutional errors. Although the Defense Department later issued regulations that address some of the constitutional problems, the commission procedures still fail to satisfy requirements of a fair trial ordinarily observed in civilian courtrooms and military courtsmartial.

[8] Lincoln would have opposed such tribunals. “In a statement to Herndon September 10, 1866, David Davis said, ‘Mr. Lincoln was advised, and I also advised him, that the various military trials in the Northern and Border States, where the courts were free and untrammeled, were unconstitutional and wrong; that they would not and ought not to be sustained by the Supreme Court; that such prceedings were dangerous to liberty. He said he was opposed to hanging; that he did not like to kill his fellow-man; that if the world had no butchers but himself it would go bloodless. When Joseph E. McDonald went to Lincoln about these military trials and asked him not to execute the men who had been executed [sic] by the military commission in Indiana he answered that he would not hang them, but added, ‘I’ll keep them I prison awhile to keep them from killing the Government.’ I am fully satisfied therefore that Lincoln was opposed to these military commissions, especially in the Northern States, where everything was open and free.’” William H. Herndon, Herndon’s Life of Lincoln (1888), with introduction and notes by Paul M. Angle (1961).

[9] U.S. Constitution, Amendment V (“No person shall be… deprived of life, liberty, or property, without due process of law….”)

[10] Universal Declaration of Human Rights, Article 7 (“All are equal before the law and are entitled without any discrimination to equal protection of the law”); Article 9 (“No one shall be subjected to arbitrary arrest…[or] detention”); Article 10 (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of…any criminal charge”).

[11] “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach unto himself.” 2 The Complete Works of Thomas Paine (P. Foner, ed., 1945) 588.

[12] “In an explosive letter to the head of the FBI, Minneapolis agent Coleen Rowley accuses the agency of thwarting an investigation that could have helped foil some of the 9/11 hijackers. …. Before Rowley came along, the Administration had succeeded in derailing…inquiries by calling them unproductive and suggesting that its critics might be unpatriotic.” Romesh Ratnesar and Michael Weisskopf, How the FBI Blew the Case, TIME (June 3, 2002) 5, 32.

[13] “Like a relentless drama too painful to watch but too compelling to turn away from, the conflict in the Middle East has put knots in New York-area residents’ stomachs and suicide bombers in their nightmares. The turmoil is geographically distant, they say, but with its echoes of Sept. 11, and its passion, it is emotionally all too close. …Arab-Americans, Jews and others – talked of hopelessness, fear and anger, and the need for America to take a leadership role to try to end what looks increasingly like war.” Amy Waldman, New Yorkers Tell of Fear, Anger and Fatigue Over Mideast, N.Y. Times (Apr. 5, 2002) A11. The correspondent quoted Mr. Jay Hecht, a school official, as saying, “When you turn the news off every evening, you’re left with a fear. When is this going to end?”

[14] “The Constitution states that the president shall be commander in chief, but it is Congress that has the constitutional authority to provide for the common defense and general welfare, to raise and support armies, and to declare war. …. Yet in this war on terrorism, Congress, by and large, has been left to learn about major war-related decisions through newspaper articles. One day we hear that American military advisers are heading to the Philippines. Another day we read the military personnel may go into the former Soviet Republic of Georgia. The next day we are sending advisers into Yemen.” Sen. Robert C. Byrd (Democrat of West Virginia), Why Congress Has to Ask Questions, N.Y. Times (Mar. 12, 2002) A29.

[15] “When IRA bombs were set off in London, there was no call to bomb West Belfast, or Boston, the source of much of the financial support for the IRA. Rather, steps were taken to apprehend the criminals, and efforts were made to deal with what lay behind the resort to terror. When a federal building was bombed in Oklahoma City, there were calls to bomb the Middle East, and it probably would have happened if the source had turned out to be there. When it was found to be domestic, with links to the ultra-right militias, there was no call to annihilate Montana and Idaho. Rather, there was a search for the perpetrator, who was found, brought to court, and sentenced, and there were efforts to understand the grievances that lay behind such crimes and to address the problems. …. There are proper and lawful ways to proceed in the case of crimes, whatever their scale. …. Nicaragua in the 1980s was subjected to violent assault by the U.S. Tens of thousands of people died. ….” Noam Chomsky, 9/11 (2002) 24.

[16] “‘I am terrified of you and all people who look like you,’ the elderly woman said. ‘What can you do to reassure me against people like you?’ I was in New York City and had just concluded my hourlong lecture on human rights and Islam at a law school conference where the subject was tolerance. She informed me that she has nightmafres about Muslim and Arab-looking people like me. The pain of hearing comments like this cannot be described.” Khaled Abou El Fadl, Moderate Muslims Under Siege, op-ed piece, N.Y. Times (July 1, 2002) A19.

[17] Stephen F. Rohde, Esq., Then They Came for Me (inspired by Rev. Martin Niemoller, 1937): “First they came for the Muslims, and I didn't speak up because I wasn't a Muslim. Then they came to detain immigrants indefinitely solely upon the certification of the Attorney General, and I didn't speak up because I wasn't an immigrant. Then they came to eavesdrop on suspects consulting with their attorneys, and I didn't speak up because I wasn't a suspect. Then they came to prosecute non-citizens before secret military commissions, and I didn't speak up because I wasn't a non-citizen. Then they came to enter homes and offices for unannounced ‘sneak and peek’ searches, and I didn't speak up because I had nothing to hide. Then they came to reinstate Cointelpro and resume the infiltration and surveillance of domestic religious and political groups, and I didn't speak up because I had stopped participating in any groups. Then they came for anyone who objected to government policy because it aided the terrorists and gave ammunition to America's enemies, and I didn't speak up because ... I didn't speak up. Then they came for me. By that time no one was left to speak up.”

[18] “‘This is the real trauma for us,’ Dr. [Onder] Ozkalipci says. ‘It destroys the moral values of the nation, not just the survivor. When you start to accept torture as something normal, it destroys your sense of humanity. If you keep your silence, after a while it will destroy you.’” Somini Sengupta, A Turkish Doctor’s Specialty: The Torture Victims, N.Y. Times (Jan. 26, 2002) A4.

[19] “The best way to make a terrorist talk when he refused to say what he knew was to torture him. …. I was indifferent. They had to be killed; that’s all there was to it.” Gen. Paul Aussaresses, qu. by Suzanne Daley, in France Fines General, 83, for Memoir Justifying Algerian War, N.Y. Times (Jan. 26, 2002) A4.

[20] “Many families of Sept. 11 victims had expected to give their support to the creation of a Department of Homeland Security as a strong indication of the country's determination to prevent another attack. But in interviews today many relatives, including leaders of the largest family organizations, said they were surprised at how bitter they felt about the partisan politics surrounding the measure. Several expressed fury that Congress had inserted special-interest provisions into the bill that might affect them personally. …[For example,] the measure includes a section inserted by House Republican leaders that will limit the liability of airport screening companies for any negligence they may have committed in allowing box cutters aboard the planes that day. Relatives of victims who were planning to sue the screening companies for damages found a possible avenue of compensation and information closed.” David Firestone, Domestic Security Bill Riles 9/11 Families, <www.nytimes.com> (Nov. 26, 2002).

[21] President Abraham Lincoln, letter to Secretary of War Edwin M. Stanton (Mar. 18, 1864), VII The Collected Works of Abraham Lincoln (Roy P. Basler, ed., 1953) 257.


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