The terrorist attacks of September 11 represented a quantum leap in the deadliness and audacity of terror. They revealed a vulnerability that many in the United States had never before appreciated. And they spurred adoption of many sound initiatives to better prevent terrorism. Unfortunately, they also triggered a startling surrender of fundamental democratic principles in an attempt to purchase enhanced security—an effort that is not only constitutionally unsound but also likely to be counterproductive.
Within weeks of the attacks, thousands of individuals were arrested and held without criminal charges, under a shroud of secrecy. Attorney General John Ashcroft compromised the Sixth Amendment right to effective legal counsel by ordering officials to wiretap attorney-client telephone calls without judicial approval. President Bush authorized the creation of military courts to secretly try terrorism suspects. And Congress fundamentally rewrote the surveillance laws and increased the powers of both the FBI and the CIA to collect information within the U.S. on citizens and noncitizens alike.
Criticizing these measures does not deny the frightening risks our nation faces. There likely will be additional terrorist attacks on our soil and against U.S. interests abroad. It is even possible that some attacks will involve biological, chemical, or nuclear materials. Yet, it is precisely because the risk is so high that we need to preserve the fullest range of due process and accountability in the exercise of government powers.
The False Trade-Off Between Freedom and Security
The debate over terrorism is often framed as a trade-off between liberty and security. This is a flawed calculus, in several respects. First, many civil liberties, far from being at odds with security, actually enhance the ability of the government to defend the common good. We guarantee the right to confront one’s accusers, for example, not only as an element of human dignity but also because cross-examination exposes lies and forces the government to continue looking until the truly guilty party is found. Similarly, we subject government decisions to public scrutiny and judicial review not only to give voice to individuals but also because openness and accountability can produce a fuller factual record, expose faulty assumptions, and slow the rash decision making of elected officials acting under pressure. We protect freedom of speech not only because it allows room for personal self-expression, but also because it promotes the stability that comes from the availability of channels for dissent and peaceful change. For these and other reasons, surrender of freedom in the name of fighting terror is not only a constitutional tragedy, it is also likely to be ineffective and worse, counterproductive.
The attorney general has said that foreign terrorists "do not deserve the protection of the American Constitution." What the attorney general does not seem to appreciate, however, is that it is precisely the procedures of the Constitution by which we reliably determine who is a terrorist and who is not.
Second, policymakers too frequently curtail civil liberties without ever actually analyzing whether civil liberties in fact pose an impediment to security. September 11 proved in the worst way that the U.S. anti-terrorism effort was flawed. The governmental reaction to the events of that day is doubly distressing not merely because it curtails civil liberties but also because it has done so with no consideration of what went wrong in the days and months before and little regard to whether the liberty-curtailing changes will be effective. The fact that U.S. authorities failed to detect the September 11 attack in advance should have prompted a comprehensive review of our intelligence capabilities. But Congress enacted many of the provisions of the Bush administration’s anti-terrorism law, the USA Patriot Act (Patriot Act), without ever identifying what problems they were intended to cure or how the additional authorities would make a difference.
Third, trading off civil liberties for real or perceived improvements in national security is the wrong place to start when there are so many things to be done to improve security that do not implicate civil liberties at all. Take airport security, where luggage screeners deserve job stability and a decent wage, and the technology to detect bombs in luggage should be used consistently. Yet, weeks and even months after September 11, breaches of airport security continue to occur. We need to do a better job of improving the safety and security of nuclear plants and chemical plants, instead of sweeping those problems under the rug as some in industry and Congress have proposed. Internationally, we should step up efforts to gain control over and destroy chemical, biological, and nuclear toxins left behind by the Soviet Union. Tighter domestic regulation of toxins is needed as well. As of September 11, we did not have an adequate system in place to control the manufacture, transport, and possession of dangerous chemicals and biological materials. There are many ways to improve the use of information in the visa and immigration process that have nothing to do with the political or associational criteria that in the past have been used to deny visas to those critical of U.S. foreign policy.
Finally, even in the area of surveillance and privacy, the choice is not between surveillance powers and no surveillance powers. Civil libertarians engaged in the debate over the new terrorism laws do not argue that the government should be denied the tools it needs to monitor terrorists’ communications. Instead, privacy advocates urge that those powers be focused and subject to clear standards and judicial review. The tragedy of the response to September 11 is not that the government has been given new powers—it is that those new powers have been granted without standards or checks and balances.
To better understand the disconnect between the danger facing America and some of the measures that have been adopted that curtail civil liberties, it is worth examining, in depth, several of the provisions in the USA Patriot Act, the anti-terrorism law adopted in October 2001.
"Sneak and Peek" Searches
The popular notion of search and seizure can be described as follows: the police go before a judge and get a search warrant. They rush to the apartment of the suspect, rap loudly on the door and shout, "Police, open up, we have a warrant to search your apartment." If the person inside doesn’t open up right away, the police can kick in the door, but in any event, most people would assume, when the FBI or police want to come into your home or apartment, they have to announce themselves, show their warrant, and, if they seize anything, leave an inventory of what they have taken. After all, the police do occasionally make mistakes and go to the wrong address. The homeowner can point this out, and observe the search to ensure the police stay within the terms of the warrant. In Wilson v. Arkansas, 514 U.S. 927 (1995), and Richards v. Wisconsin, 520 U.S. 385 (1997), the Supreme Court reaffirmed this vision, holding that contemporaneous notice was normally constitutionally required, and could be dispensed with only under exceptional circumstances.
The Patriot Act threw out this concept of a normal police search of a home, apartment, or office. Section 213 amended section 3103a of Title 18, United States Code, allowing the FBI to secretly enter your apartment or house while you are asleep or away, take, alter or copy things, and not tell you they were there for days, weeks, or even months later. Instead of crafting specific standards for such searches, Congress incorporated by reference a delayed notice provision governing the reading of stored e-mail.
Instead of limiting the so-called "sneak and peek" authority to aliens suspected of terrorism, Congress applied it to the homes of citizens also. Moreover, what is most remarkable about this provision is that it is not limited to terrorism cases: it applies to drug cases, tax fraud, providing false information on student loan applications, or any other federal crime. And it is not subject to the sunset provision under which some of the new law’s provisions expire after four years unless renewed by Congress. Thus, the emergency atmosphere generated by the September 11 attacks was used to make a permanent, fundamental change in law enforcement procedures having nothing to do with terrorism.
Expanding the Domestic Power of the CIA
When the Central Intelligence Agency was created in 1947, Congress explicitly said that the agency was to have no subpoena or domestic police powers. Instead, the CIA’s operations were intended to be directed overseas, focused on foreign nationals. Since the CIA was not supposed to engage in law enforcement, and since its agents were never supposed to appear in court, the CIA was not given the type of power that law enforcement agencies wield. And those law enforcement powers are awesome.
One of the most powerful is the grand jury. The grand jury can compel anyone to testify before it under oath. If you refuse, you can be sent to jail. If you testify and the government believes you are lying, you can be prosecuted for perjury. The grand jury can compel any business to turn over any records or databases, again with the threat of jail time for those who refuse. These powers are subject, however, to two important controls: anything from the grand jury the government uses in a criminal case is subject to the full panoply of due process protections, while, on the other hand, anything not used in open court must be kept secret and used for no other purpose.
Section 203 of the 2001 Patriot Act abolished these limitations, giving the CIA the benefit of the grand jury’s powers with none of the protections of the criminal justice system. In a provision that is not subject to the four-year sunset, the new law amended Rule 6(e) of the Federal Rules of Criminal Procedure to allow information collected by grand juries to be shared with the CIA and other intelligence agencies, as well as any national defense or national security official, without the prior approval of a judge. In effect, CIA agents working with law enforcement officers can now jointly draw up subpoenas, obtain the fruits of the grand jury’s power, and never have to appear in open court or explain how they used the information.
Evading the Stricter Standards of the Criminal Wiretap Laws
One of the other fundamental changes of the Patriot Act was to allow the FBI to carry out wiretaps and secret physical searches ("black bag jobs") to collect evidence of crimes using the lower standards designed for foreign intelligence gathering. The Foreign Intelligence Surveillance Act (FISA) authorizes the FBI to conduct electronic surveillance and clandestine searches without full probable cause to believe that a crime has been or is about to be committed. Instead, the FISA standard merely requires the government to have probable cause to believe that the target of the intrusion is an agent of a foreign power. If the suspected agent of a foreign power is a U.S. citizen, the government needs additional probable cause, but still less than is required for a wiretap under Title III or a normal search and seizure in a criminal case.
The wiretaps and searches authorized by FISA are extraordinary in nature: Most notably, the target of the surveillance is never notified of the intrusion (under Title III and even under the "sneak and peek" authority in the Patriot Act, the subject is eventually notified after the investigation closes). This lack of notice is most significant in cases where the surveillance turns up nothing. Under FISA, a person is notified of surveillance only if he or she is later prosecuted using the evidence seized. Even then, defendants have little opportunity to challenge the validity of the search, for they are never provided the affidavit that served as the basis for the surveillance. In the case of individuals who are not prosecuted—those where the likelihood of government overreaching is the greatest—notice is never given.
This extraordinary authority was justified on the basis that it would not be used for the purpose of investigating crime. Congress recognized that evidence of crimes might be collected—espionage, for example, is a crime—so Congress allowed the use of FISA evidence in criminal cases. But the "primary purpose" of the investigation had to be the collection of foreign intelligence. Otherwise, the statute would serve as an end run around the probable cause requirements of the criminal wiretap statute.
In the Patriot Act, Congress eliminated the primary purpose test, amending FISA to allow wiretaps and physical searches without probable cause so long as "a significant purpose" of the intrusion is to collect foreign intelligence. The express justification for this was to allow the government to initiate wiretaps under FISA’s lower standard where the primary purpose from the outset was the collection of criminal evidence. This means that, in cases involving a foreign government—an investigation, for example, of foreign contributions to a U.S. political campaign—the Department of Justice can conduct a criminal investigation involving FBI wiretapping and secret searches without probable cause to believe that a crime was being committed. If no crime turns up, the government need never tell the person whose phones were tapped; yet the information obtained can be shared with the CIA, the National Security Council, and the Pentagon.
The Dragnet Approach
Generally, when the government goes to a bank, credit bureau, telephone company, hospital, or library, it can obtain a person’s records only if there is reason to believe that the particular person was engaged in some wrongdoing. In international terrorism cases, for example, the government formerly needed some reason to believe that the person whose records it was seeking was a member of a foreign terrorist group. The Patriot Act wiped out this limitation. The implications of this change are enormous. Previously, the FBI could get the credit records of anyone suspected of being an international terrorist. Under the new 2001 legislation, the FBI can get the entire database of the credit card company. It can go into a public library and ask for the records on everybody who ever used the library, or who used it on a certain day, or who checked out certain kinds of books. It can do the same at any bank, any telephone company, any hotel or motel, any hospital, and any university—merely on the claim that the information is "sought for" an investigation to protect against international terrorism or clandestine intelligence activities.
In the name of fighting terrorism, changes have been adopted that fundamentally alter the power of the government. They weaken the role of the judiciary. They relieve the government of the responsibility to focus its investigations on specific suspects. They permit government agencies to cast their nets far wider than ever before.
These changes do not mean merely that the government is collecting a lot more information on a lot more people in the hope that something will turn up. The investigative and intelligence agencies were already choking on more information than they could digest. Sweeping in even more information will not make the picture any clearer. In this way, the expanded surveillance powers are likely to make counterterrorism efforts more inefficient.
The fight against terrorism is an epic struggle, one that is likely to go on for many years. It is precisely because the stakes are so high that we need to adhere to principles of due process, judicial checks and balances, and openness and accountability in government.