Protecting Liberty in an Age of Terror is by Philip B. Heymann and Juliette N. Kayyem (MIT University Press, 2005).

How can we prevent the fight against terrorism from degenerating into a downward spiral of torture and detention without trial? The traditional answer is to push for tougher enforcement of laws against such abuse. Protecting Liberty in an Age of Terror, a new book by Harvard Professors Philip B. Heymann of the Law School and Juliette N. Kayyem of the Kennedy School, suggests a different response: limited sacrifice of our rights to avoid greater incursions. They believe that abuses can be minimized by allowing formal exceptions to traditional legal prohibitions but making senior officials take political responsibility for the rights violations they authorize.

Their analysis of “coercive interrogation” is illustrative. There is no more basic human rights protection than the absolute ban on torture and other forms of cruel, inhuman or degrading treatment dictated by international and domestic laws. Still, the Bush administration has routinely flouted this prohibition—in Guantánamo, Abu Ghraib, elsewhere in Iraq and Afghanistan, and its archipelago of secret detention facilities. What is the best way to restrain these abuses?

Rejecting a prohibitory approach, Heymann and Kayyem recommend a regulatory one. While foreswearing torture “without exception,” they would permit interrogators to use cruel, inhuman or degrading treatment “in extreme circumstances,” so long as the president himself authorizes it, later notifies Congress’s secret intelligence committees, and, once every two years, lets the public know how often he has allowed such mistreatment. Modest as these disclosure requirements are, the authors gamble that the political cost of personally authorizing coercive interrogation would lead the president to permit it only rarely.

Sadly, events have shown this faith in presidential forbearance to be misguided. Despite the Bush administration’s efforts to portray detainee abuse as the product of a few bad apples, the statements of senior administration officials show that much abuse was a matter of policy set by the highest levels of government. During his confirmation hearings in January 2005, Attorney General Alberto Gonzales asserted that international law permits cruel or degrading treatment of detainees so long as the victim is a non-US citizen held overseas. No other government today makes such a radical claim. When Senator John McCain introduced legislation to reverse that policy, Vice President Cheney sought to exempt the CIA (which holds “high value” detainees), and President Bush threatened to veto the bill. Even when the legislation passed by a veto-proof majority, President Bush issued a statement asserting that as commander-in-chief he had authority to ignore the law anyway.

This permissive attitude toward detainee abuse extends even to outright torture. President Bush repeatedly says that the United States will not countenance torture. Yet for over two years beginning in August 2002, the administration defined torture so narrowly as to render the prohibition virtually meaningless. In its view, abuse was not torture unless the pain was equivalent to the loss of a major bodily organ, thereby allowing for procedures such as ripping out fingernails or cutting off ears. Even since the administration repudiated this grotesque definition in December 2004, Porter Goss, the CIA director, continues to insist that “water boarding”—a classic torture technique involving mock execution by threat of drowning—is a “professional interrogation technique” and reportedly has authorized its use.

With the Bush administration openly adopting such policy positions, Heymann and Kayyem seem naïve in their faith that senior officials would ordinarily be too ashamed to embrace detainee abuse. The political cost of that abuse, the Bush administration seems to feel, is all too manageable.

Moreover, once a president authorizes interrogators to start down the path of cruel or degrading treatment, the route to torture is not long. These techniques “work” only when they become impossible to tolerate. Thus, interrogators end up increasing the intensity of the treatment to the point of torture. Israel demonstrated this dynamic when, beginning in 1987, it permitted interrogators to use “moderate physical pressure” against certain terrorist suspects. In a process of political accountability similar to that recommended by Heymann and Kayyem, it established a ministerial committee headed by the prime minister to oversee interrogations. Israeli interrogators soon ended up torturing between 80 and 90 percent of Palestinian security detainees. The torture eventually got so out of hand that in 1999 the Israeli Supreme Court had to step in and curtail the practice.

Heymann and Kayyem suggest a similar process of accountability to deter the government’s use of detention without trial for suspects seized far from any traditional battlefield. They would permit the US government’s Foreign Intelligence Surveillance Act courts—so-called FISA courts—to order summary detention of such non-US suspects only if the US attorney general personally presents evidence showing that the detainee was a terrorist leader or a participant in an imminent attack. The detention would be authorized for thirty days at a time and could be renewed indefinitely. As in the case of coercive interrogation, the secret Congressional intelligence committees would be notified, and statistics would be made public annually.

The proposal is an improvement on the Bush administration’s current approach to detention, which seeks to avoid any judicial review. However, Heymann and Kayyem would still permit the government to dispense with criminal charges altogether for non-Americans. Indeed, the authors do not even give such suspects or their lawyers an opportunity to see or contest the evidence allegedly justifying detention.

FISA judges in such circumstances are poor defenders of rights. Out of the approximately 15,000 wiretap applications the FISA courts have considered since 1979, they have rejected only four. Such extraordinary deference to the state is difficult to avoid when the court hears from only the government, particularly one pursuing a terrorist threat.

Heymann and Kayyem implicitly rely on public embarrassment to constrain the attorney general from too frequently seeking summary detention of suspects, but as in the case of abusive interrogation, that trust seems misplaced. The Bush administration has openly touted a series of extreme legal theories to justify holding suspects without trial or access to a lawyer. Even US citizens arrested in the United States can be held indefinitely as “enemy combatants.” Non-US citizens arrested anyplace else can be held as combatants at Guantánamo. All of these practices violate the basic right not to be detained without charge, but shame has hardly inhibited the Bush administration from their regular use. Indeed, the administration has spent years defending such practices before intensive public criticism.