Just how tenacious are our civil liberties and our Constitution in the face of a concerted, emotional, ideological assault? The answer is variable, and far from clear. During World War II, an entire ethnic population was harassed and deprived of liberty, property, and due process in the name of national security. Certainly, we should all recognize that nothing remotely comparable has happened, or is about to happen to Muslims and Arabs in the wake of September 11, 2001. Yet most attacks on civil liberties take a far more benign form in their incipient stages.
In light of recent events, conservatives should realize that leftists may not be the only ones in need of a thorough re-reading of the Constitution. The undeclared “War on Terror” has seen the Bush Administration as well as the congress repeatedly disregard or gloss-over civil liberties concerns in ways that, though not indicative of a rising police state, are concerning in the precedent they set. Throughout the past two years, the government has established a worrisome behavioral pattern in its domestic response to terrorism: the executive branch demands more power to fight terror, which is promptly granted by a legislature eager to escape all responsibility for terrorist attacks, present or future. Attorney General John Ashcroft, then, in repeated inquiries as to his use of these new powers, refuses to provide concrete answers and insists on their usefulness and his general good faith in his application of them.
It is understandable that the government should require a new law-enforcement framework in the aftermath of an attack as devastating as the one on September 11. It is equally true that many of the provisions of President Bush’s military order and of the USA Patriot Act are quite reasonable under the circumstances. Perhaps the administration even cherishes civil liberties, and is eminently respectful of them in its application of its considerable anti-terrorism powers. Conservatives, however, should reflect on the fact that these powers are broad, precedent-setting, and subject to misuse, whether in the hands of Bush and Ashcroft, or any of their successors.
What is most worrisome is Ashcroft’s repeated obfuscation in the face of questions about the use of his domestic anti-terrorism authority. The most blatant instance of such stonewalling is the Justice Department’s refusal to divulge any information on some 1,200 alien “detainees” arrested after the terrorist attacks of 2001. Furthermore, Ashcroft has insisted that his new powers are vital, and amount merely to an expansion of his existing law-enforcement authority into the arena of terrorism. As the following examination will show, these comments do not come close to acknowledging the true nature of the post-9/11 expansion of government power.
The issue of detentions is significant in and of itself. Alleged dirty-bomber Jose Padilla may be guilty, but is it really reasonable to indefinitely imprison an American citizen without access to an attorney and without charging him with a crime, just because he may be found innocent in a civilian (or military) court? The concerns with the USA Patriot Act are likewise major: increased wiretap authority, increased ability to demand records from third parties, and increased use of government databases to keep records on private citizens. Furthermore, there is no guarantee that these powers will be used solely in the prevention and prosecution of terrorist acts. Remember, if Bush and Ashcroft are capable of usurping this kind of power, so also are any of their successors – just imagine the implications of such authority in the hands of Bill Clinton and Janet Reno.
Civil libertarians are understandably vexed in the face of such huge obstacles. Much of the worry arises from concerns over the increasing ease with which the government is able to accumulate and compile records and databases of its citizens’ private information in a digital era. Some of the privacy concerns may be quixotic; after all, the IRS has long kept track of our financial records. The expanding welfare state, not a new phenomenon by any means, has also (naturally) required increasingly more information from its citizens, in the form of medical, economic, and legal records, as well as other personal information. What is different now is the ease with which these records can be accessed and cross-referenced by many different government agencies, including law enforcement. Every time we place our social security number on a medical form, employment application, or tax return, we rarely pause to think what will be done with this information, or in whose hands it may end up. Indeed, the social security number has quietly established itself as a kind of national identification number, serving as a password to vast databases of personal information that we routinely divulge without thinking twice.
It would not necessarily be desirable, nor would it in any case be practical, to turn back the clock on most of these developments. After all, digital record keeping has been immeasurably convenient in terms of increased productivity and decreased human error. It is, however, worth thinking about in the context of just what information we allow the government to access, and especially what we allow the government to do with this information once it is legally accessible. The fundamental flaw with the new anti-terrorism paradigm is that it has not given pause to contemplate these concerns, let alone to provide answers to them.
The USA Patriot Act and President Bush’s military executive order both find their roots in the immediate aftermath of September 11, 2001. In just five weeks, the USA Patriot Act made its way from an administration draft into full law. There is little in the way of a legislative record, and less still in the way of committee records. In fact, the House Judiciary Committee held only one hearing on the bill, and called only one witness: John Ashcroft. The administration’s inclination toward painting all opposition to the measure as unpatriotic is clearly reflected in the title of the bill, as well as the attorney general’s telling remarks to a Senate committee a mere few weeks after its final passage: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends.”
It was under these conditions that the Patriot Act sailed through the house by a vote of 357 to 66, followed by a decision of 98 to 1 in the Senate. The reasons for this should be clear enough. The President, likely to be the one held accountable for any future terrorist attacks, and knowing he could expect no help from legislators, tried to shield himself from criticism by accumulating as much power as possible to prevent more attacks, or at least to give the impression that he had done all he could. Congress, knowing that the only way they could be held culpable was by not granting his requests, willingly acceded to his demands in the post-disaster grace period. The myth that this was some sort of a Republican power-grab should be easily dispelled by a glance at this legislative record. It is ludicrous to suggest that Democrats somehow care more for our civil liberties than do Republicans; if they had any qualms at all, they were with significant powers in the hands of a Republican administration, not with the same powers in the hands of the government. Indeed the only senator to see the Patriot Act in the context of the big picture of government power, and where it all might lead, was Russ Feingold, the Democrat from Wisconsin. In casting the lone vote against the legislation, Senator Feingold’s explanation of his decision deserves our attention:
If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your e-mail communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.
Feingold’s rejection of the anti-terrorism orthodoxy of seeing all public policy in terms of a zero-sum game between liberty and security is actually quite a conservative position. It scoffs at the notion that the government can somehow use its supernatural powers to solve all of our problems, or to protect us from all harm. It acknowledges the government’s instinct to blame our freedoms for a problem that was unavoidable, and most likely not predicted or prevented due to the government’s own inefficiency and incompetence. And finally, it recognizes the government’s pathological inability to hold itself accountable for the consequences of its increased power Why more conservative, or for that matter liberal, lawmakers have not recognized the eminent sensibility of this position can only be explained by their desire to escape all blame by washing their hands of the matter entirely.
What is missing at the front end of the government’s effort to prevent terrorism is an honest assessment of what government has been able to do in the past in this field, and what it is able to do now. September 11 and the 1995 Oklahoma City bombing —the two largest terrorist attacks on our country to date, have both succeeded in producing immediate, knee-jerk reactions from lawmakers—without any evidence that we are actually safer. The
Comprehensive Terrorism Prevention Act of 1995 placed restrictions on the writ of habeas corpus, and allowed the President to ban trade with nations which he deemed not fully cooperative with American anti-terrorism efforts. Still, President Clinton proved to be anything but prescient when he declared that the new legislation gave “our law enforcement officials . . . tough new tools to stop terrorists before they strike.”
The fact of the matter is that terrorism is simply not universally preventable. For every terrorist attack we suffer, our instinct will doubtless be to blame the terrorists’ successes on the openness and freedom of our society, and demand another huge, panicked, piece of legislation to insure that such a thing never happens again. The truth, however, is that there is nothing we can do to stop it from happening again; there must come a point when we decide that the government has enough power, and needs to make do with what it already has. Furthermore, there is ample reason to believe that September 11 represents an analysis failure more than an intelligence failure. James DeLong of the Competitive Enterprise Institute notes that FBI personnel, “given a specific report from a flight school that a man with known links to terrorists wanted lessons on how to steer a 767, but not to take off or land, had no context in which his odd request made sense.” The government’s voracious appetite for information will do us no good in the absence of competent use of already available information, and as long as it continues to blame all of its failures on “insufficient power and money”
With all of these government failures and follies in mind, I can identify three broad areas in which the Bush administration, with congressional approval, should improve its anti-terrorism policy. The government must: 1) clarify, restrict, and seek congressional approval for its policy on detentions and tribunals; 2) clarify and restrict its increased wiretap and surveillance authority; and 3) strive for more targeted and open legislation, surveillance, and investigations.
1. Clarify, restrict, and seek congressional approval for administration policy on detentions and tribunals. Even if every single person arrested or detained to date as part of the “War on Terror” is, in fact, guilty, the status quo is unacceptable because of its flagrant disregard for due process. The problem begins with the 1,000-plus aliens, legal and illegal, detained after the initial attacks. All of these people were arrested in the United States, all without warrants. The USA Patriot Act allows the attorney general to detain non-citizens suspected of terrorism for up to seven days. This is eminently reasonable in the context of the problems we face. The Justice Department, however, has been less than forthcoming when pressed with questions as to the identity and status of these detainees. Nearly a year after the September 11 attacks, the Justice Department would say only that there were fewer than 400 detainees remaining in custody, 100 of whom had been criminally charged.
It is one thing to detain a hostile combatant on the battlefield, and quite another thing entirely to detain an immigrant, legal or illegal, once he or she has entered the United States, based solely on suspicion. Provisions of the Patriot Act allow the attorney general considerable latitude to detain beyond the initial seven day period. After that time has elapsed, the detainee must technically be released unless deportation or criminal proceedings have commenced. 1 lowever, Ashcroft has been able to imprison many people for months or even years by simply charging non-deportable illegal immigrants with a technical immigration violation. If an alien receives this status, the attorney general need only certify every six months that national security is at stake.
It is clear from precedent that this practice does not pass constitutional muster. The Supreme Court ruled in Zadvydas v, Davis that immigrants, even illegals, are entitled to due process and may not be detained indefinitely. The Court did leave room for allowing different procedures for immigrants suspected of terrorism. It should be clear, however, that allowing the executive branch to act as judge, jury, and prosecutor for terrorist suspects is not an acceptable alternative procedure. At the very least, Congress must get involved by setting a firm, reasonable time frame for all deportation proceedings. Certainly, if there is not enough evidence to charge an immigrant with a crime within a few months, he or she should be deported or released.
More worrisome still is the administration’s policy on detentions of U.S. citizens. Because of the inconsistency in the treatment of U.S. detainees, one is often left to guess at just what this policy is. For example, Yaser Esam Hamdi has been detained for more than a year without access to an attorney and without being charged with a crime. Hamdi, an American citizen, was caught, AK-47 in hand, fighting for the enemy in Afghanistan. With that knowledge, it is difficult to garner much sympathy for the man, but his circumstances still beg a principled examination. Hamdi cannot be charged before a military tribunal, because President Bush’s military order allows that option only for non-citizens. If, however, military justice is suitable for members of the American armed services, why should it not be for Hamdi? He clearly fits all the criteria as an unlawful combatant, and the circumstances of his capture leave no gray area as to what he was up to. Under international law, military tribunals for unlawful combatants are perfectly legal in the case of the “War on Terror,” but now that Hamdi is on American soil, he should be criminally charged in a civilian court. In any event, why hasn’t the administration provided an adequate explanation as to why they went this route with John Walker Lindh, caught in similar circumstances, while Hamdi waits in legal limbo?
The case of Jose Padilla raises even more red flags. Like Hamdi, Padilla is a U.S. citizen, but unlike Hamdi, he was arrested on U.S. soil – at Chicago O’Hare airport, in fact. The government has accused Padilla of involvement in a plot to detonate a radiological “dirty bomb.” To date, he has been held incommunicado at a military brig, without access to an attorney, and without having been formally charged with any crime. Flolding Padilla as an illegal combatant is a bold affront to due process. Since he was not caught on a foreign battlefield, the government must surely have sufficient evidence to charge him with treason or terrorism. Still, this has not happened — and if the only reason Padilla is still being held is for lack of evidence, he must be released immediately.
Another possibility is that the government is afraid of the implications of holding open trials for terrorist suspects. Intelligence sources could be revealed, or terrorists could communicate through their lawyers. Some of these worries border on paranoia, but still, they may be legitimate in some cases. What is perfectly clear is that the “Great Writ” of Habeas Corpus is not subject to the whims of the executive branch. The Supreme Court, in Ex Parte Milligan, rejected President Lincoln’s suspension of certain provisions of the Bill of Rights, and that was under conditions of open rebellion and declared war. Perhaps a new legal framework allowing for more secrecy and expediency is necessary in a “War on Terror,” but in that case, Congress must approve that framework, and it must not allow for indefinite confinement without counsel of American citizens arrested on American soil.
2. Clarify and restrict law enforcement’s increased wiretap and surveillance authority. As I have noted, there is ample reason to believe that pre-9/11 intelligence failures had far more to do with faulty government procedure than with a lack of intelligence information. Still, provisions of the Patriot Act go to huge lengths to gut due process and constitutional protections in pursuit of yet more information. Through it all, the American public has been distressingly ambivalent about these developments. Perhaps many Americans believe that they will never personally be targets of governmental privacy invasions, or perhaps they feel that a few hundred years of liberal tradition is a small and abstract sacrifice to make in exchange for a perceived increase in security. However, the government’s new snooping powers have very real implications for how law enforcement will operate in this country in the future.
The Patriot Act allows law enforcement officials much greater ease of access to information that they could already obtain with a warrant showing probable cause. For example, section 215 grants the Justice Department the authority to subpoena third-party records on terrorist suspects without a warrant. This broad new authority covers everything from business and medical records to library records and web-site visits. It is not difficult to fathom how this could be a serious First Amendment concern: without having to show probable cause that a person is engaging in criminal activity, the FBI can now find out what books she has been reading, what web-sites she has been visiting, and what purchases she has been making. Yet, even this extraordinary power is apparently not enough for the attorney general, who under the President’s new policy now has the authority to, without judicial approval, eavesdrop on conversations between suspected terrorists and their lawyers. It is interesting that President Bush did not include this blatant affront to the tradition of attorney-client privilege in the Patriot Act, which was subject to congressional approval, but rather by executive order in the form of a “rule” governing internal operations in federal prisons.
Another worrisome provision of the Patriot Act allows the government greater access to wiretaps by modifying parts of the 1978 Foreign Intelligence Surveillance Act (FISA). Under F1SA, the government has been able to monitor the communications of persons if they are agents of a foreign power. Warrants for such surveillance are granted by a secret, rubber-stamp FISA court, a procedure which obviously does not observe the traditional civilian standard for freedom from unreasonable search and seizure. Still, this is understandable, as domestic law enforcement agencies need some way to engage in counter-espionage targeted at people who are already in the country. The flip side of this is that previously, information obtained under FISA has not been admissible in civilian courts of law, due to the quasi-constitutional circumstances under which that information was gathered. Under its vaunted “intelligence-sharing” provisions, the Patriot Act quietly removed this restriction, thus allowing communications intercepts gathered by dubious means to be used in civilian criminal prosecutions.
If the government decides that it truly needs more intelligence information in order to prevent a massive and deadly attack, it should have access to this information. Still, such efforts at terror prevention should never come at the expense of the constitutional protections that American citizens have long enjoyed. Indeed, in emergency situations, it may be completely necessary for the attorney general to have some broad surveillance powers, but these powers must be restricted in key ways, so as to preserve due process. For instance, information gathered under emergency powers could be used for purposes of terror prevention only; it would only be admissible in court if the government were to go through proper judicial channels to obtain a warrant.
3. Strive for more targeted and open legislation, surveillance, and investigations. Our government’s response to major terrorist attacks has not been to encourage a free and open discussion about what our response should be, but rather to force broadly-targeted laws onto the books while denying their ramifications. Though attorney general Ashcroft repeatedly insists that the Patriot Act does little beyond giving him the authority to fight terror as he would other crimes, the act itself is unspecific in most areas, leaving huge questions as to what law enforcement officials may do with their new powers. For example, one provision of the Patriot Act allows the government to database DNA from any person convicted of a “crime of violence.” Even if you think this is a good idea, why should it be included in “emergency” anti-terrorism legislation?
The wiretap provisions of the Patriot Act are also quite broad. Because the law makes warrant requirements so lax and lowers the standards for allowing surveillance, there is no reason to believe that the government will restrict its use of such broad powers to fighting terrorism. Indeed, the annual “Wiretap Report” detailing domestic electronic surveillance shows that fewer than a fifth of one percent of all wiretaps are for any offense that could be considered related to terrorism, while about 75 percent are for drug cases. This is exactly the surveillance authority that the Patriot Act has expanded. Even Paypal, an online cash transfer service, has been put on notice by a Missouri prosecutor that it is now in violation of the Patriot Act by processing funds from online gambling operations. As Dave Kopel of the Independence Institute rightly warns on National Review Online, “If we want to give the federal government vast new surveillance powers for drug, pornography, and gambling laws, then let us have a full and open debate on the subject, and not deceive ourselves with the notion that this expansion is part of fighting terrorism.”
Furthermore, we must adopt a targeted and approach to terror management when it comes to matters of immigration and surveillance of certain ethnic groups. This does not mean militarizing the U.S.-Mexico border, a proposition that would undoubtedly end up an expensive failure, not to mention a bloodbath for Mexican illegals. Nor does it mean holding INS deportation hearings in secret while some are detained for months or even years on technical immigration violations. It requires simply that immigration officials do their job by keeping track of people from at-risk countries who enter the United States, and making sure these people are doing what they claim. This requires no new legislation; indeed, most of the September 11 hijackers should have been denied visas based on the incomplete information in their applications. Finally, we should recognize that racial profiling is a common-sense law enforcement tool. Even though Transportation Secretary Norm Minetta believes that we should be comforted by equally tough airport scrutiny for Arab men and Japanese women, this sort of indiscriminate policy certainly does not make us safer.
Conclusion
Despite warnings raised in the preceding points, there are good reasons for optimism in this tough time for the American Republic. Our system generally provides us with such sufficient checks that the pendulum swings the other way before too long. Our President and most of his administration have, to all outward appearances, handled themselves with extreme resolve and principle in the face of an extremely difficult set of circumstances. Yet we must realize that we are setting the tone for years to come, and that the constitutional issues we deal with are not distant and theoretical, but very real, with very real implications for how we live our lives. We should also fall back on the conservative principles that have taught us that more government is not always the answer (in times of crisis or not), and that good intentions do not necessarily make for good laws. In any event, a principled, un-frenzied debate on the implications of government anti-terror policy should insure that we continue to live under a government of laws, and not of men.
