250 The making of American domestic policy
the Court invalidated the execution of a mentally retarded murderer and in
2005, in Roper v. Simmons, it decided that a person convicted of committing
murder in Mississippi when under the age of eighteen should not be execut-
ed. A combination of the laws passed by state legislatures, the decisions of
the courts and public opinion determines this important area of government
policy, with no intervention by president or Congress.
The ‘War on Terror’ and civil rights
In the aftermath of the terrorist attacks of 11 September 2001 Congress
hastily passed the USA Patriot Act, or, to give it its full title, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Inter-
cept and Obstruct Terrorism Act of 2001. Largely aimed at aliens, the Act
gave the government powers to set up military tribunals to try suspected ter-
rorists, with no appeals from their verdicts; to arrest suspects and hold them
indefinitely, although they had to be charged within seven days; to listen in on
conversations between lawyers and clients in detention; to obtain the library
and medical records of suspects; to intercept telephone and internet commu-
nications; to search premises without a warrant; and to use other measures
not normally acceptable by the courts. The legislation was renewed in 2006,
and a number of the measures it contained were made permanent.
The atrocities perpetrated in September 2001 had far-reaching conse-
quences for almost every aspect of American life; not least for the rights
of American citizens and foreigners held in American custody. The war in
Afghanistan led to the taking of many prisoners suspected of links with al-
Qaeda; similarly the war in Iraq resulted in the incarceration of ‘insurgents’;
at home the fear of further terrorist attacks provoked actions by the admin-
istration and by Congress to try to prevent them. The impact of these events,
both on a society proud of its record on civil rights and upon international
opinion, was profound. This story will not be over for a long time to come, but
we can examine what happened in the first four years following ‘9/11’.
The taking of hundreds of prisoners in Afghanistan who were Taliban
fighters or might be members of al-Qaeda and might have information which
could lead to the capture of Osama bin Laden or other leaders of the organi-
sation presented the United States authorities with a problem. If these men
had information, how best to interrogate them, and once interrogated should
they be set free, perhaps to commit further terrorist acts? Normally prisoners
of war are interned in camps for the duration of hostilities where they should
be treated in accordance with the Geneva Convention which prescribes the
conditions under which prisoners may be kept and the way in which the ‘De-
taining Power’ must treat them. In particular, the convention lays down the
following rules concerning the treatment of prisoners of war:
Every prisoner of war, when questioned on the subject, is bound to give
only his surname, first names and rank, date of birth, and army, regimen-
tal, personal or serial number, or failing this, equivalent information.