Given the unprecedented sense of national vulnerability in the wake of Sept. 11, we undoubtedly need to correct gaps in our security. In so doing, however, we should not needlessly erode
civil liberties. The balance between security and liberty now clearly tilts too much in the direction of government control and away from liberty.
Even before the current crisis, our government had garnered extensive new powers to combat terrorism. These powers themselves go too far. With the carnage of the Twin Towers and the Pentagon attacks, the balance between security and liberty now dearly tilts too much in the direction of government control and away from liberty.
The measures enacted in the wake of Sept. 11 are not our nation’s first responses to terrorism. In response to the Oklahoma City bombing, 1995’s Omnibus Counterterrodsm Act and 1996’s Antiterrorism and Effective Death Penalty Act became law. The first law granted government the authority to subject suspected terrorists to greater electronic surveillance, including access to telephone, motel, and travel records; to expedite the deportation of aliens even on secret evidence; and to prohibit members of foreign groups designated as terrorist organizations from raising funds in the United States. The second law allows the United States to prevent presumed terrorists from entering the country and gives the government the power to deport aliens with ties to terrorist groups. People who contribute to or raise funds for suspected terrorist groups can also be prosecuted.
After the attacks of Sept. 11, Congress passed the “USA PATRIOT” Act. The USA P A TRIOT Act was rushed through Congress with unseemly haste, and admittedly wasn’t read by most members of Congress. The haste was facilitated by including provisions .that had been on law enforcement and intelligence “wish lists” for many years but which had been resisted in the more deliberative pre-Sept. 11 environment. The cute acronym stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” but it would be 1l10re accurate if the “A” stood for “Alarming” rather than ” Appropriate.”
The law includes some much-needed updates to take into account modern technology (such as resources to enhance shared databases for border enforcement, and providing·for a personal wiretap order so that terrorists cannot circumvent the order by using varied or even disposable mobile phones).
But it also includes several provisions that appear to be clearly unconstitutional and a violation of our nation’s human rights treaty obligations. Among these are the new requirements that:
•allow government to access personal consumer credit, health, or other data from businesses maintaining such data, and student data from universities (all without proving any crime);
•expand government ability to monitor your email and
Internet habits without your knowledge;
•allow government to search your house or premises
without the warrant or probable cause traditionally required by the Fourth Amendment, without even needing to notify you in advance;
•expand government’s ability to detain indefinitely and deport aliens by lowering the standard to mere “reason to believe” that the alien has engaged in “any activity that endangers national security”;
•explicitly allow indefinite detention or deportation on mere “association” with any organization that ever used weapons (Would the Daughters of the American Revolution qualify? Surely contributions to peaceful branches of the African National Congress, or the political branch of the IRA, would.);
•diminish the key distinction, built up over years, between domestic law enforcement (traditionally subject to a higher standard) and foreign intelligence gathering (tradi-
The anti-terrorist laws invert the presumption of innocence that is at the heart of our criminal justice system.
tionally a lower standard), effectively putting the CIA back in the domestic surveillance business;
•in general, increase government discretion to act without the”individualized suspicion” usually required as a constitutional minimum.
Why should law-abiding citizens fear these laws? Recent history demonstrates the danger in expanding the FBI’s power without proper oversight. Beginning in the 1950s, the FBI counterintelligence group, Cointelpro, actively investigated and infiltrated “seditious” groups. The vast intelligence operation was generally aimed·at the left, targeting the Socialist Workers Party, the Black Panthers, anti-war activists, civil rights groups, and women’s liberation groups in the 1960s. In addition, the FBI admitted that in the 1970s it wiretapped federal offices, members of Congress, their aides, and journalists. The agency used unapproved wiretaps, made illegal break-ins, and infiltrated suspected groups. In the 1980s, the FBI actively investigated the Committee in Solidarity with the People of EI Salvador (CISPES), which opposed U.S. military aid to EI Salvador. The group did not fund leftist guerrillas in EI Salvador and was not active in terrorist activities in the United States. Its only”crime” was
to oppose U.S. policy. The FBI used surveillance, informants, undercover operatives, and extensive gathering of bank records, trash, telephone records, and more, creating files on almost 2,400 citizens. More groups that support unpopular policies are likely to be targeted.
Unfortunately, suspected groups are not merely scrutinized. The government attacked the Black Panthers and the Symbionese Liberation Army. At the infamous Ruby Ridge siege, the FBI approved rules of engagement allowing the use of lethal force, without warning, against any armed individual. Normally, there must be imminent mortal danger before deadly force can be used. These are examples of an overzealous agency, or, at least overzealous agents within the agency without sufficient oversight.
What about non-citizens? The president’s executive order of Nov. 13 regarding military tribunals and detention is very broad and vague, applying to any non-U.S. citizen – not even limiting it to those fighting against us. Under this executive order, non-citizens would not be treated with the same rights and liberties as citizens. Yet according to long-standing constitutional law precedent, alienage is a “suspect class” justifying enhanced (“strict”) scrutiny of discriminatory laws affecting this vulnerable group. In the words of U.S. Supreme Court Justice Hugo Black, “classifications based on alienage, like those of race or ethnicity, are inherently suspect.” Moreover, the definition of terrorism leaves to presidential discretion who is subject to this executive order. The net is cast wide: Non-citizens whom the president has “reason to believe” are members of al Qaeda, or engage in, conspire for, or prepare for” acts of international terrorism” are subject to detention and military trial. This broad definition can be stretched to include resident aliens who exercise political speech in a purely peaceful, humanitarian way. For example, an Irish-American permanent resident who contributes to a fund for the widows and orphans of those killed in Belfast, or a Muslim permanent resident who
contributes to a Palestinian relief fund, could be covered by the order.
The executive order exemplifies the problem that “terrorism” is a nebulous term that can be easily abused. Different agencies of the United States government can’t even agree on a definition. Terrorism is an inherently political term, because it can be subjectively interpreted by those in power to support their own purposes. It is often difficult to distinguish between a terrorist group and a legitimate national liberation movement, especially among those in the
The dismal reality is that none of these new measures would have prevented the attacks on Sept. 11.
establishment. Governing elites have easy resort to the terrorist label to justify the status quo. This definitional ambiguity poses a particular problem in that the 1996 Antiterrorism and Effective Death Penalty Act allows the secretary of state and attorney general to designate which groups are terrorist and to restrict their fundraising·and other activities. The word “terrorism” in other words, can clearly be politically manipulated.
The problem is that, in moving toward a national security state, we’re moving toward a Kafkaesque universe in which the mere suspicion that someone may be a terrorist means that he is then presumed to be one and is treated like one. This inverts the presumption of innocence that is at the heart of our criminal justice system.. Though most of us are unlikely to be subject to this prejudicial treatment, many – or any – of us could be. Even in peaceful times, the definition of terrorism is political, problematic, and open to abuse. In times of national crisis, this definitional problem combined with enhanced executive discretion becomes extremely dangerous. Attorney General John Ashcroft recently said, “To those . . . who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorism, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause .to America’s friends.” Recently, Senate Majority Leader Tom Daschle criticized President Bush’s proposed expansion of the war against terror. In response, Senate Minority Leader Trent Lott accused him of undermining the unity of the nation.
Patriotism and unity are important in times of crisis, but they should not be a substitute for the democratic process that produces good policy. Of course, there is always tension between order and liberty: Some order is necessary to create the conditions for liberty, but too much order can endanger liberty and even order itself. Before Sept. 11, traditionally leftist groups, like the ACLU, aligned themselves with traditionally rightist groups, like the NRA, to oppose versions of the 1995 and 1996 legislation. Ominously, since Sept. 11, fewer voices of dissent, constructive criticism, and honest questioning have been heard (with the ACLU being a notable exception).
Dissent is a fundamental value of this country – one the terrorists hate. We must be careful to uphold the value of free speech, especially in times of crisis. Even conservative columnist William Safire, and Republicans such as Georgia Congressman Bob Barr and Pennsylvania Senator Arlen Specter objected to the· military tribunals. Criticism of U.s. policy is necessary, healthy, and desirable. Now our own government is promulgating secrecy of names of detainees, of evidence against aliens detained, in withdrawing government documents from libraries, in secret searches of homes or your Internet activity. The chief weapon against such secrecy is the disinfectant light of dissent.
The issue transcends proper balance between order and liberty. Our policies must also be effective. The dismal reality is that none of these new measures would have prevented the attacks on Sept. 11. To the extent that the measures alienate those best situated to provide intelligence on al Qaeda, or provide too much. information to effectively sift through, they will be counterproductive. “Feel-good” measures play to politicians’ desires to be seen as “doing something.” But can any measure that upsets the balance between security and liberty by going so far that it undercuts our core values and sodJetal identity truly be considered” effective”?
A closed and repressive society, intolerant of “alien” people and ideas, is precisely what the al Qaeda terrorists want us to become. By thoughtlessly moving our society in that direction, especially without clear corresponding benefits, we give the terrorists the most significant victory they are likely to achieve in this war. Strong dissent aimed at preserving and restoring liberty is the best route to victory for freedom and democracy.