FOR SOMEONE WHO spent his career in the military, rising to become the Navy’s top legal officer before retiring three years ago, former Rear Admiral John Hutson is voicing concerns about the impact of the war in Iraq that might seem unusual coming from a career military man.

Speaking with Bar News in the first week of the war against Iraq, Hutson expressed confidence in the ability of the US-led forces to ultimately prevail in their objectives to oust Saddam Hussein. But he has a broader concern that Americans’ allegiance to civil liberties and personal freedoms is being gradually eroded by a combination of factors. The shift to a wartime footing, combined with the post-9/11 era’s increased emphasis on homeland security and advances in information and surveillance technologies are subtly, but inexorably, prying apart our embrace of fundamental freedoms. "In finding our balance on the continuum of security versus privacy and personal freedom, we all put the peg at a different point," Hutson explains. "But I’ve become concerned about how comfortable we’ve all become with infringements of our privacy and liberties. I don’t want to become more afraid of my government than of terrorists, and I fear we are reaching an unacceptable conclusion by taking a series of acceptable steps."

"There’s a triple threat going here," he explains. "We have had an explosion of technology in how we gather and communicate information, there are these ongoing terrorist threats, and there’s an anesthesia induced by a gradual loss of privacy. We’re lulled into a sense of security at the cost of personal freedom and privacy."

Hutson’s appointment as dean of Franklin Pierce Law Center provides him a much different perspective from that of his life in the military, but his desire to speak out is in part motivated by a military officer’s understanding of the need for leadership in difficult times. The major difference is that now instead of "leading from the rear" as an officer advising his superiors, he is sharing his thoughts directly and openly with a wider community.

Shortly after the initiation of open war against Iraq, Hutson met with Concord-area religious and community leaders who asked him to help them anticipate possible responses in NH to the Iraqi conflict, including mistreatment of New Hampshire residents who might be harassed or persecuted because of their ethnic background or appearance. Heading a school with a significant proportion of students from foreign countries (approximately 100 out of a student population of 475), Hutson is involved in local efforts such as the Concord Area Coalition Against Racism & Intolerance. Pierce Law’s criminal practice and civil law clinics train law students to represent vulnerable and unpopular clients, and the school has provided training for lawyers, law students, and social workers to help refugees navigate a foreign culture and legal environment. Such priorities arising from his role as a law school dean influence, but don’t entirely account for, Hutson’s perspective.

Hutson points out his training and experience as a lawyer in the military encouraged him to consider the wider ramifications of any particular action. Military lawyers are playing an increasingly important role at command levels, he said, and that includes considering the societal or political impact of military actions. "In modern warfare, the input of lawyers has increased dramatically," said Hutson, whose last position as US Navy Judge Advocate General involved the assignment of legal officers to top commands throughout the military. "The lawyers’ input has become more important in the past 20 years. Previously, commanders typically resisted the advice of lawyers. Now they want their guidance and the lawyer is at the commander’s side along with the operations officer. When a commander is considering a potential action, such as going after a particular target, the lawyer is there to answer whether it is legal to take a particular action, to consider the proportionality of the force being used, and advise whether the importance of the target justifies the potential collateral damage." And military lawyers, inculcated into a culture that values leadership over mere technical or intellectual prowess, are expected to take a broad view and speak out when necessary to properly fulfill their role as counsel to their commanding officers. Hutson’s axiom, which applies of course to lawyers whether in uniform or not, is: "A good lawyer knows about the law; a great lawyer knows about life."

Still, it may seem surprising to find a retired career military officer anxious about the overreaching of government authority. Hutson admits he too was surprised by his discomfort with the security measures that he sees are paring away at our civil liberties. In fact, it was during an appearance on National Public Radio a few months ago when he was asked to defend measures such as the "USA Patriot Act" that he found himself finding merit in the concerns of its opponents. Following the show, he said he continued to reflect on the chipping away of Americans’ privacy in the wake of 9/11.

"There has developed in this country a real anesthesia about the loss of our privacy and personal freedoms," Hutson said. "This was accelerated by the need for greater homeland security in the wake of 9/11 and it is coincident with breakthroughs in technology that are completely unrelated. But they are part of the same witch’s brew."

"At the Super Bowl, police were scanning every person coming into Qualcomm Stadium using facial-recognition technology. Now they are talking about the possibility that every time you board an airplane, the Transportation Security Agency is going to run a credit check and criminal check on you."

The historic line between domestic (FBI) and foreign (CIA) intelligence is increasingly being blurred by the desire for more effective means to fight terrorism. "The FBI and CIA have been rivals for years," said Hutson. "Now they are working together more. If the CIA starts influencing domestic intelligence decisions, it would be a major power shift. The ACLU is terrified at the implications. And, after being told for so many years of the importance of separating foreign and domestic intelligence functions, it gives me some pause too. The FBI isn’t the enemy, the FBI is our friend. I’m sure the FBI and the CIA working closely together will be an even bigger friend — kind of like ‘Big Brother,’ " Hutson suggests.

Meanwhile, commercial and technological trends are contributing to the lowering of our guard.

In the name of convenience, technology is increasingly used to track our every move. "More and more, as we use ATMs and debit cards, every financial transaction that we make is documented. The auto companies are talking about using global positioning technology to monitor where my car is if it crashes and the airbag is deployed. Think about that for a moment —they can always know where we are. And we don’t seem to care. If you went back 10 years, and someone said to you, ‘This is what people are going to find out about you in 2003,’ you’d be aghast. Now it doesn’t even make the newspaper."

Hutson does not dispute the need for increased security, but he fears that Americans’ desire for personal safety in the wake of terrorist attacks and continuing threats has relaxed their vigilance over their cherished civil liberties. "All of this security makes us feel better. Security cameras at Qualcomm are being used to profile known criminals and runaways. That’s well and good. But every technology has the potential of being misused. We keep going so far down the road that the calendar reads "1984" and we wonder, ‘How did we get here?’ "

Hutson, in a recent speech to a group of military lawyers, suggested that Americans’ complacency in the face of these intrusions may be tied to an erosion of a sense of personal responsibility. "With that comes an unavoidable decrease in personal freedom and privacy. If you’re not responsible for yourself, someone or some institution has to be responsible for you, and the government will fill that void if it has to."

"This may be where liberals and conservatives meet," said Hutson, who identifies himself as a conservative. "At some point, adherents of both philosophies fear big government. We must all have the patriotism to ask these questions and the leadership to help form the answers."

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer