ONE MONTH AFTER the unthinkable occurred, we’re now debating the unthinkable: should US investigators be allowed to torture suspects into talking? Meanwhile, Congress has passed an anti-terrorism bill, cynically called the Patriot bill (for Provide Appropriate Tools Required to Intercept and Obstruct Terrorism) that carves a good chunk out of previously guaranteed civil liberties. The former is not going to protect our security, while the latter is sure to erode liberties more than we can now imagine.

Two weeks ago, the Washington Post reported on the Federal Bureau of Investigation’s frustration with the refusal of four material witnesses in the September 11 terror attacks to talk. For nearly 40 days, agents have tried unsuccessfully to extract information from the men — a former Boston cab driver believed to have links to Al Qaeda; a French Moroccan who tried to get lessons on how to steer a jet, but not how to take off or land; and two Indians who were detained September 12 when they were caught traveling with false passports, hair dye, $5000 in cash, and box cutters. The FBI has exhausted its legal weapons of persuasion: offers of money, employment, new identities, and reduced sentencing. Now officials are considering more forceful methods of interrogation: administering truth serum, threatening to export the witnesses to countries that use torture when questioning suspects, or applying physical means of pressure themselves.

The idea is garnering support from unexpected quarters: Alan Dershowitz, a man disliked by many for his heretofore uncompromising defense of civil liberties, says that in this post–September 11 world, we need to consider new methods of investigation. That would include use of "torture warrants" (getting permission from a judge to apply force during interrogation), administration of truth serum, and issuing national ID cards. As Dershowitz recently told Newsweek: "I’m not in favor of torture, but if you’re going to have it, it should damn well have court approval."

If you’re going to have it? Why is this option even on the table? As Kenneth Roth, executive director of Human Rights Watch, puts it: "It’s as if they’ve forgotten what it is that distinguishes law abiding people from terrorists. The logic of terrorism is that anything goes in the name of a cause. We have to be quite careful not to fall into that logic in fighting terrorism."

That includes deporting suspects or witnesses to countries where torture will be used in order to keep our hands "clean."

Let’s take a controlled scenario in which torture could be an option. What if investigators knew beyond a shadow of a doubt that the United States was about to come under nuclear attack and that a suspect already in custody had knowledge of how to stop the attack but refused to give it up. In other words, let’s take the contrived plot line you might find in a James Bond–type movie. Would torture be an acceptable means of extracting the information needed to save hundreds of thousands, if not millions, of lives? Almost all of us would say yes. But in real life, you don’t get those conditions. Take the circumstances we’re dealing with now: the FBI is questioning people who might have knowledge about an attack that’s already occurred. Given what we already know about Al Qaeda — that the organization operates via independent terrorist cells often unaware of each other’s existence — we really don’t know for certain that the material witnesses now being held by the FBI could offer information about future attacks. In short, there’s too much we don’t know to erode 200 years of constitutionally protected civil liberties.

Once we open the door to torture in extreme cases, its use will quickly become indiscriminate. And we don’t even have proof that it works. People are tortured to say something — anything — to make it stop. Even if what’s said is a lie.

Yet civil libertarians have enveloped the issue with astonishing silence. Roth’s organization, which focuses on humanitarian concerns around the world, has felt the wrath of a terrified and impatient public. The Boston Globe recently reported that Human Rights Watch has found it almost impossible to raise money because donors interpret some of the organization’s actions as anti-American. "It clearly is the most difficult time to talk about human rights when people feel that their security is threatened, because there is an unreflective instinct to want the government to do whatever it takes to meet the terrorist threat," says Roth.

It’s this fear that allowed Congress to pass the Patriot bill. As the Phoenix noted in this space before (see "Civil Liberties Matter," Editorial, September 27, available at bostonphoenix.com), the bill will enable the FBI to monitor the computer usage not just of a suspected terrorist, but of everyone who’s on the same network as the individual under surveillance.

There was little debate before the bill passed, and it’s barely come under scrutiny now that it’s law — so we’re surely ignorant of many of the bill’s more odious provisions. And yet this is what noted First Amendment attorney Floyd Abrams, talking to Newsweek, had to say about it: "This was incomparably more sober and sensible than what some of our revered presidents did." Abrams was referring to Abraham Lincoln’s decision to suspend the right of habeas corpus during the Civil War. (With this uncritical reception, maybe we can adopt a law modeled on what Germany just did: outlaw certain religions.)

In our battle against insecurity, we’re forgetting a few things: our national law-enforcement agencies have prevented terrorist attacks in the past. The most notable example was the thwarting of planned bombings in the United States on the eve of the new millennium. There are probably other examples we don’t even know about. In that vein, the FBI had the tools and knowledge it needed to prevent the September 11 attacks. After all, a number of the hijackers were on terrorist-watch lists. They never should have been allowed in this country. Once in, they never should have been allowed to board a plane. But our intelligence failed us. Indeed, it failed in a spectacular fashion. The proper response to this failure isn’t to abandon the principles that have made this country one of the world’s few homes to civil liberties, democratic principles, and free speech. It’s to guard our rights and freedoms with more vigor than ever before.

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