The people’s good is the highest law.
—Marcus Tullius Cicero
By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.
—Abraham Lincoln
When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.
—Oliver Wendell Holmes Jr.
Liberty cannot exist without order to secure it. For all practical purposes, a man’s freedom to patronize the local ice cream parlor will be meaningless when crime is so rampant as to imperil everyone who dares step outside. But an excess of order constrains liberty, making life safer but less desirable. Government video cameras and miniature microphones would not be welcome additions to citizens’ homes, and for every person to submit thrice daily to strip-searches would make common crime lose half its grossness. Were America faced with such extremes, she would have to ask herself whether life, of itself, has no value absent the freedom to live without constraint. As matters now stand, however, there is no such dilemma. Notwithstanding the complaints of civil libertarians, our present government has not exceeded the bounds of reasonable wartime security.
The USA PATRIOT Act (Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) was signed into law by President Bush on Oct. 26, 2001, to address the deficiencies in U.S. intelligence that made 9/11 possible. The obvious solution was to make the nation’s intelligence program more efficient. For that purpose, write Jonathan Krim and Robert O’Harrow Jr. in the Washington Post, the act “gives the government a freer hand to conduct searches, detain or deport suspects, eavesdrop on Internet communication, monitor financial transactions and obtain electronic records of individuals. At the same time, it reduces the need for subpoenas, court orders or other legal checks to enable law enforcement to move more quickly.” The Federal Bureau of Investigation can now request that employers, credit bureaus, banks, libraries, and Internet service providers furnish personal information on employees and clients suspected of working with terrorists. It can also monitor online communications when people “trespass” on networks (using them without authorization), with the help of a new e-mail wiretap program called Carnivore.
In addition, the PATRIOT Act does away with a host of bizarre regulations that serve no discernible purpose and hamper law enforcement. Prior to the passage of this act, a bureaucratic wall of separation at the FBI prohibited two agents working in the same office from speaking to each other about an al-Qaeda investigation if one of them were a criminal investigator and the other an intelligence investigator. This bureaucratic insanity prevented FBI agents in Minneapolis, Minnesota, from searching the computer of “20th hijacker” Zacarias Moussaoui for months before 9/11. A search would have given connections to the Hamburg, Germany terrorist cell that planned the terrorist attacks, and to two of the 9/11 hijackers specifically. The PATRIOT Act tore down that wall, and now allows federal agencies to share information within and among themselves. It also empowers the FBI to track cellular phone calls across state lines, provided that it has been granted a valid phone tap in at least one state. The dexterity with which modern terrorists have used America’s technology against her makes it all the more important for security laws to reflect twenty-first-century realities—a purpose well served by the act.
In brief, this legislation takes the War on Terror seriously. But the Left cries foul, citing an unprecedented and unnecessary breach of civil liberties. Emily Whitfield, a national spokesperson for the American Civil Liberties Union, has said, “The Bush Administration has presented Americans with a false dichotomy that we must choose between being safe or free,” That assertion is 180 degrees wrong. At no point will a significant fraction of the country’s population be under suspicion of terrorist activities. The necessary resources for intelligence agencies to monitor every person’s private life a la Orwell’s 1984 quite simply will never exist. And however well-funded those agencies might be, investigators sworn to protect Americans will not waste their time scrutinizing people whom they consider innocuous, since doing so would fritter away opportunities to track actual terrorists. The last thing that investigators need is to be reminded to do their jobs. Finally, one cannot overemphasize that virtually any search or seizure by federal agents still requires authorization from a federal district court judge. Investigators are not permitted to harass civilians for their personal amusement, nor, generally, will they.
The Detentions
Opponents, in response to these points, call attention to the mass detentions of 2001 and 2002. The U.S. Department of Justice rounded up some 762 immigrants, almost all of them illegal, in the wake of the terrorist attacks and failed to deal speedily with them. That failure is nowhere near as pronounced as the major media have told their readership. The Los Angeles Times editorialized that federal agents “held most [of the detainees] for months without charges,” citing a report published by the Office of the Inspector General of the Justice Department. But that report claims that agents notified 738 of the detainees of their charges within a month. Syndicated columnist Michelle Malkin writes that in the 24 other cases, the selfsame report listed “numerous legitimate reasons for delay, such as logistical disruptions in New York City after Sept. 11, including electrical outages, office shutdowns and mail service cancellation that slowed delivery of charging documents.” And not a single allegation by a detainee of verbal or physical abuse resulted in a criminal charge against an agent, Malkin adds—hardly the mark of a civil liberties emergency.
Moreover, delays in charging the detainees would be a reason to credit, not to criticize, the Justice Department. Government investigators are all well-acquainted with the tension between speed and accuracy. As this is a ubiquitous problem in garden-variety criminal investigations (indeed, in all matters of life), one could not but expect it to appear in terrorist investigations. Yet terrorists are far more dangerous than common criminals. This makes it more important to hunt them down, and hence more permissible to restrict certain liberties in the course of the hunt. Another factor that separates the present cases from criminal cases is that here, the chance of detaining innocents is much smaller. Nearly all of those captured and detained were criminals to begin with; because they were illegal aliens, their presence in the United States was a crime unto itself. Exacerbating the delays was the decades-long refusal by the Immigration and Naturalization Service to deport most aliens who committed crimes or overstayed their visas, thus creating a glut of cases that should have been resolved years ago and that the authorities eventually had to probe.
Federal investigators have no great desire to prolong the analysis of any particular case. Whenever they perform an investigation that turns up no leads, a terrorist moves closer to his goal with a smaller chance of being caught. As aforesaid, the number of cases will never comprise a major segment of the U.S. population, but that number will always be too high. Even if the FBI were investigating only one-hundredth of one percent of the country’s population, that would amount to nearly 30,000 cases. Investigators must also bear in mind that anything less than a thorough examination of a case increases the likelihood of missing an opportunity to prevent a terrorist attack. The authorities are therefore faced with a nightmarish dilemma, and Americans would be wise to leave them to resolve it by themselves, i.e., without the intervention of lawsuits. Imperfect though their judgments may be, no one is better equipped to make those judgments than these agents—not the courts, most of whose members have never performed investigations, and definitely not litigators, whose task is to serve their clients’ welfare, not their country’s.
On this subject, Attorney General John D. Ashcroft has been accused of holding illegal immigrants responsible for other people’s crimes, diverting his attention from the real threat to national security. The answer is that it would be impractical and politically infeasible to detain everybody in America, or to expel all Muslims. To justify tracking or detaining individuals, the government needs evidence of suspicious {such as illegal) behavior. Further, there is hard evidence that strict enforcement of immigration rules would help thwart terrorist attacks. Three of the 9/11 hijackers had overstayed their visas but were never deported: Nawaf al-Hazmi, Satam al-Suqami, and Hani Hanjour. 9/11 mastermind Mohammed Atta and fellow hijacker Marwan al-Shehhi both failed to maintain their legal visitor status in the United States. Mahmud and Mohammed Abouhalima, two of the terrorists behind the 1993 bombing of the World Trade Center, were illegal aliens who had received amnesty from our government. Hashem Mohamed Hadayet overstayed his visa for five years before shooting two people to death at Los Angeles International Airport on July 4, 2002. Millennium bombing conspirators Abdelghani Meskini, Ahmed Ressam, and Abdel Hakim Tizegha entered the United States illegally. So did New York subway bombing conspirators Gazi Ibrahim Abu Mezer and Lafi Khalil. Lee Boyd Malvo, one of the Washington, D.C., serial snipers, entered the United States illegally, was arrested by Border Patrol officers, and was released without bond by an immigration court, in a decision directly repugnant to immigration law. So illegal immigrants are not scapegoats. They are either terrorists themselves or human shields for them, since it is impossible to know in advance of investigations who is or is not a security risk—thus forcing our intelligence agents to waste their time by investigating every suspicious case that they find.
Liberals have also cited the 1,073 civil rights complaints filed against the Justice Department between Dec. 16, 2002, and June 15, 2003. But the Office of the Inspector General found a paltry 34 “credible Patriot Act violations on their face.” That expression does not mean that these 34 cases involve probable and real abuses of civil rights, but that they meet the legal requirements merely to be considered, according to Heather Mac Donald of the Manhattan Institute. As of this writing, the Office of the Inspector General has opened investigations into only six complaints. It has found two complaints to have even a modicum of substantiating evidence, and neither alleges physical abuse. Nor do these complaints—or any of the other 32—involve the powers established by the PATRIOT Act. In one case, a prison officer admitted that he had ordered an inmate to “remove his shirt so that the officer could use it to shine his shoes.” In the other case, a prison doctor allegedly said, “If I was in charge, 1 would execute every last one of you…because of the crimes you all did,” Mac Donald writes. The verbal abuse in each case occurred during the performance of prison duties unrelated to the Act.
The strong weight of evidence shows that a good many of the 34 other complaints are utterly without merit. One of these concerned an immigration official who allegedly “rudely” asked a detainee if the latter “wanted to kill Christians and Jews,” the Associated Press reports. In light of the rhetoric put forth by Islamists, the question was certainly within reason. Failure to be sensitive is not an abuse of power, and in the course of a terrorist investigation, it will often be necessary. Another complaint, filed by a citizen of Lebanese extraction, maintains that federal agents broke into his home to look for an AK-47 assault rifle. It appears that the agents lacked the psychic capacity to determine, in advance of the raid that the information on which they acted was false. Let grievances pile up over errors such as this, and see what effect that will have on agents’ willingness to follow and act on any leads that do not guarantee their own accuracy. The cost, in foregone raids that would have borne fruit, will by far exceed the gain in liberty.
Here we have cases, not of the government wrecking individuals’ lives, but of the individuals’ being insulted or inconvenienced. Obviously, this is insufficient to validate any backlash against or pressure upon government agents, whose job is difficult enough. A “chilling effect” on civil liberties is nowhere near as destructive as the same effect on law enforcement. Freedom from one aggravating encounter with the law is not a sine qua non for an enjoyable life, but safety most certainly is. Lest the reader respond that the Fourth Amendment rejects that marshaling of values, it must be added that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” does not entail that investigators never make mistakes in this area. It is often perfectly reasonable for agents, who must act on limited information, to search or seize one who turns out to be harmless. The reasonableness of an agent’s decision to search or seize depends on the facts available to him at the time that he made his decision, not on the outcome thereof. This same principle underlies the requirement that “probable cause” precede the issuance of warrants. Cause is often “probable” without being correct. In other words, law enforcement does not act unconstitutionally every time it errs.
A Surveillance State?
If the Fourth or any other Amendment were more restrictive of law enforcement, then it would render the Constitution a straitjacket and would not deserve our deference. Unfortunately much of the population has come to fetishize its privacy and to dread any innovation that makes government intelligence more efficient. Particularly disturbing to such people are the provisions of the PATRIOT Act that allow the government to monitor online communications and to call on organizations to supply personal information on employees and clients. The United States is a splendid target for terrorists, with a complex web of public and private services—loans, welfare programs, banking services, online merchants, cellular phones, libraries and Web sites filled with information about vulnerable nuclear power plants and recipes for homemade bombs—that anyone can turn against the public. So when an individual commits an act that arouses suspicion of terror ties, investigators should track his use of these services. If the authorities learned that a 30-year-old male Saudi immigrant was illegally using an Internet service provider, and that he had donated money to “charities” that sponsor terrorism, they would be remiss not to learn whether he were applying to flight school or researching the vulnerabilities of a local nuclear plant.
Whatever freedoms Americans enjoy must be balanced against the population’s right to survival. If information on how to make bombs or disable intelligence agencies’ computer programs is readily available in bookstores, in libraries, or on the Internet, then the government has an obligation not to let civilians access that information. It is difficult to understand why anyone besides a potential terrorist would need such knowledge, and no one can pretend that it merits First Amendment protection. While, at first glance, that amendment appears to protect any information that can be labeled “speech” (“Congress shall make no law … abridging the freedom of speech .. .”), devotion to the public safety clearly forecloses the absolutist interpretation. If “no law” literally means “no law,” then federal laws against perjury, death threats against elected officials, and libel are unconstitutional. So also would be the federal law against publicly revealing undercover agents’ identities. Freedom of information must be limited where it might imperil the public safety, or else the same freedom will itself be insecure. Homemade bombs and “accidents” at power plants restrict their victims’ freedom of information a lot more than the PATRIOT Act.
James Bovard, writing in the American Conservative, complains that the act has made it unsafe for Americans to research biochemical weapons “to keep speed with the War on Terror.” Why on earth would anyone do this in the first place? The government may not be doing the best job of preventing terrorist attacks, but for the people to assume that they can do better is unwarranted at best and moronic at worst. The people have no special competence to thwart biochemical or other attacks, except by reporting suspicious Muslims, thus allowing federal agents to check on their research interests—as thev should. (The FBI will not check everyone’s records: it only follows tips of suspicious individuals, or requests information on people who have already caught the FBI’s eye.) Now is not the time for citizens to become well-versed on substances that our government dreads. They should be totally ignorant of this topic—leaving fewer suspects for the authorities to deal with. This is a very mild restriction; no one is suggesting that people be investigated for sampling the Koran or for buying the “Lawrence of Arabia” DVD on Amazon.com.
Bovard also criticizes the Justice Department for refusing to inform Congress how many times the FBI has requested library records or performed covert investigations or Carnivore e-mail checks. He objects, “Freedom has apparently become so fragile that citizens can no longer be permitted to know how often their government invades their privacy.” Precisely correct. Human beings are apt to react more viscerallv than mentally to every bit of news they receive, making the great bulk of them thoroughly unqualified to pass judgment on intelligence activity of this sort. Suppose that the people find out that their government has read 20,000 e-mails (out of all the millions sent daily). Now estimate the proportion of the general public that would be sickened even by this puny intrusion and complain to their elected officials about their lost privacy. Neither the public nor its elected officials would be able to weigh objectively the gain in security, and hence the gain in freedom which security makes possible, against the loss of freedom under Carnivore. The program would then be cancelled, and U.S. intelligence would be the worse off for the public’s being informed about that meager level of intrusion.
Often, elected representatives know better than their constituents what is best for the latter. But those constituents can vote out of office a representative whose votes stray too far from their specific policy preferences, and legislators are mindful of this. So if a security measure would greatly serve the FBI in tracking terrorists, but would also fail the public’s “puke test” thanks to its perceived intrusiveness, then most legislators would vote to reflect the public’s will on that measure, thus protecting their jobs. With every specific security proposal, the cost in liberty is at once apparent, whereas the gain in security is not: no one can determine how many terrorist attacks Policy “X”, “Y”, or “Z” would prevent if enacted. So there is an automatic mental bias against security, even as people insist that the government protect them. The people want completely contradictory things done on their behalf, and for this reason the government must take an independent stand if it means to defend the country. In his Nov. 3, 1774, Speech to the Electors of Bristol, Edmund Burke famously said, “Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.”
It is no answer to say that America’s representatives are only attempting to get the information that they need for informed judgment, and that such judgment does not entail reflexivelv voting in favor of security proposals. The public, whose memories of 9/11 are disturbingly distant, is accustomed to almost unrestrained liberty. In such an atmosphere, it would be almost impossible for elected representatives to exercise independent judgment, so long as they value staying in office—as almost all of them do. But federal agents do more clandestine work and do not face reelection, and hence they are much less likely to sacrifice necessary intelligence procedures on the altar of public taste. It is they who hold our futures in their hands, and rightly so. As stated earlier, anyone else who gives advice to federal agents or brings pressure to bear upon them is infinitely more likely to be wrong. An acquaintance once asked this author what the population should do during the War on Terror, and the response was, “Nothing.” Nothing, that is, except tip off the authorities when something looks suspicious. Any further involvement on the part of the masses—who have no idea how to defend a nation—could be disastrous. This is all the more true because they get their information from media that wildly exaggerate whatever limits the government does place on freedom, as we have already seen.
Racial Profiling
The specters of ethnic and racial profiling have also drawn criticism. Despite the fact that airport screeners routinely ignore Arab-American flyers and instead delay such blatant security risks as middle-aged white men wearing cowboy boots, 80-year-old Irish nuns with blue eyes, and 92-year-old black women in wheelchairs, civil libertarians insist that Arabs are being singled out for searches. Assuming for the sake of argument that this were true, it would be simple common sense. If we received information that blue-haired fanatics were planning to smuggle biological, chemical, or nuclear weapons into the United States, it would be perfectly sensible to subject people of this description to heightened scrutiny, at airports and elsewhere. Accurate risk assessment entails judging and treating everyone consistently with the risk that he poses. Consider it the price of “diversity.” Some groups produce terrorists by the truckload, and others do not. Today the major threat to our survival comes not from disgruntled white males (apologies to Charles Moose) but from Islamic Arab males. Since Muslims do not wear tags identifying them as radicals or loyalists, one and all must be searched. As to the “safe and free” argument, to exempt a whole ethnic group from reasonable examination is not an absolute prerequisite of freedom. To be inconvenienced is not to be deprived of essential liberty.
Many, if not most, who are profiled would turn out to be innocent, and this would no doubt cause embarrassment. But it is contestable whether profiling is, on balance, harmful to those innocents. When Muslim extremists smuggle a nuclear bomb into this country because no one thought fit to search them, and they detonate the bomb, killing 10 million, the innocent Muslims in America who are killed in the blast will not be grateful for our cowardice. And while profiling is an imperfect science (non-Muslims with dark skin, for example, would more likely be searched if we profiled), this is no reason to turn our backs on easily identifiable Islamists. To ignore them all simply because some of them may actually be Roman Catholics from Central America, and to search instead those who are still less likely to be terrorists would serve no purpose. It is idiotic to elevate cultural sensitivity above human life. Ethnic and racial profiling are not ethnocentric and racist, they are common sense, it is a far greater evil to allow thousands and possibly millions of people to be killed in preventable terrorist attacks than simply to disturb and upset selected members of a small minority group. Blood is worth more than tears.
Prisoner Treatment
Perhaps the most controversial aspect of the present war has been the treatment of suspected terrorists whom the government has captured. Abdullah al-Muhajir, a.k.a. Jose Padilla, and Yaser Esam Hamdi are two cases in point. Both are American citizens who have waged war against the United States, the former by plotting to explode a radioactive “dirty bomb” on American soil, the latter by serving in a Taliban military unit in Afghanistan. The government has classed them as enemy combatants for their actions. President Bush is of the opinion that it would be safer to detain them, and enemy combatants generally, for an indefinite period {without access to counsel) than to try them immediately for their crimes, at least in part because they are believed to have important information. Wartime necessity is the rationale. When a president qua commander-in-chief orders the military to detain a combatant, the rules and rights of criminal justice do not apply. The need for information on possible future acts of terrorism justifies detention until the government is satisfied that it has learned enough. This is a perfectly sensible approach.
Congress gave the president the authority to handle terrorists with “all necessary and appropriate force,” and he has exercised this authority entirely within the bounds of tradition and law. A president’s authority to order the detention of an enemy combatant without trial and for the duration of hostilities is well-settled. The reason is to preclude the detainees’ murdering civilians while the country is distracted by the task of fighting the war. It would be possible to try them now, but it would not be practical. There are more pressing needs than the formal disposition of these cases, and this priority becomes all the clearer as the authorities capture more and more terrorists. Every agent employed by the government should spend his time trying to prevent future terrorist attacks, not ministering to the worries of those who tried to slaughter Americans en masse. There are 285 million people whose needs come before those of Padilla and Hamdi. Many have expressed concern that the indefinite length of this war will lead to overlong, and perhaps unending, detentions. Indeed it may, but this is a reason to tighten, not to slacken, the usual wartime limits on prisoners’ rights. We are fighting for our survival. That the fight may go on forever is not a good reason to divert attention and resources from the fight.
Opponents also argue that, by forestalling a trial and holding these men without access to counsel, the president has neutered the adversary system of justice and actually disserved the public. The theory underlying this argument is that the detainees’ having a vigorous defense sets a high standard for government prosecutors, which ensures that the latter will be forced to improve their arguments, closely analyze the evidence, and present the strongest possible cases. Yet the purpose of having a legal system is not to create a class of super-intelligent lawyers but to defend the population, and the adversary system does a very poor job of this. Perhaps the authorities are holding Padilla and Hamdi without trial because they cannot make a winning case to a court, though they know them to be guilty. If this is true, and the terrorists had to be released for that reason, then no benefit would redound to the public. Two terrorists would be free, one of whom had attempted to detonate a nuclear bomb and would no doubt do so again. An adversary system tends to produce an acquittal where the government’s case is weak, even though the suspect may well be guiltv. We cannot take that risk when it comes to terrorists.
Conclusion
If, as his opponents charge, the president has arrogated to himself the powers of a monarch, then long live the King. The government has no more pressing duty than to ensure the safety of the American people, and the president understands this. Even so, his abridgments of civil liberties are miniscule, compared to those of past presidents who faced crises far less serious than our own. The Great Emancipator, Abraham Lincoln, locked up 13,000 people (the modern equivalent would be approximately 167,000) for suspected disloyalty to the government. Yet America lives on. And momentous as the Civil War was, it was not a war of extermination. This war is. Never has there been a more dangerous time to err against caution. Merely to establish an intelligence program is to alter the nation’s balance of liberty and order for purposes thought desirable. And it is too plain for argument that the balance must be reset for the United States to avoid another 9/11. Let the president set it however he wants. For if the Executive Branch does not have the strong hand that it needs to fight this war, we will die and our freedoms will die with us.
