Although much of the concern over managing the tension between liberty and security in response to the recent terrorist attacks has been focused on the anti-terrorism bills and the resulting USA Patriot Act (Patriot Act) adopted in late fall 2001, the issues presented by the new statute are less significant than the civil liberties issues resting entirely within the discretion of the executive branch. If the focus of current concern remains centered on the Patriot Act, a number of questions of major importance are likely to escape careful attention and analysis.
The critical trade-offs facing Americans following September 11 arise primarily from choices that must be made among the uses of discretionary powers and the tactical interplay of rules for U.S. citizens with rules for noncitizens rather than from the pitting of rights of Americans to be free of intrusive government action against new powers granted in the name of national security. The critical trade-offs are as follows:
- Privacy rights impacted by the collection and use of information from a wide variety of sources weighed against privacy rights compromised by intrusive investigative techniques;
- Costs in terms of privacy and efficiency of investigating all possible suspects weighed against discriminatory effects of focusing investigation and other preventive steps on groups characterized by specific ethnic characteristics or noncitizenship;
- Internal security measures versus law enforcement measures and the use of intelligence agencies versus law enforcement agencies in fighting terrorism;
- Difficulty of conducting trials in the United States versus assassination abroad or military tribunals (which are spared the problems of open proof and an independent fact finder);
- Greatly increasing the level of intrusiveness of investigative activity in the United States versus encouraging other nations to increase the intrusiveness of their own investigations.
This article will discuss refocusing the powers long available to U.S. law enforcement and intelligence agencies, rather than new statutory powers. The discussion is structured around the risks to American civil liberties (and to the human rights of others) that result from our efforts to increase our security and freedom from fear in three ways—prevention, consequence management, and punishment.
Prevention: We must try to increase our security against major terrorist attacks by some mix of the following preventive measures: (1) learning of a terrorist group’s plans in advance, monitoring its efforts, and frustrating those efforts; (2) denying all those who fail some test of loyalty access to targets or the resources needed to attack those targets; (3) combining methods (1) and (2), first monitoring efforts to obtain access to targets and dangerous resources and then monitoring those exerting such efforts; or (4) detaining without criminal conviction those who are most likely to be supportive of an act of terrorism.
Consequence Management: If we fail to prevent a terrorist attack, we must be prepared to minimize its harmful consequences. In the case of massive attacks like those on September 11, or those that might follow from the use of biological or nuclear weapons, consequence management requires the availability of emergency powers that are not generally granted to law enforcement, military, or intelligence agents—a grant that carries with it grave dangers.
Punishment: Finally, if we fail to prevent a massive terrorist attack, we in all likelihood will want to retaliate against the terrorists, their leaders, and any states that support the terrorists. Our drive to retaliate, and the forms that this retaliation may take, also raise difficult human rights issues.
The Risks to Privacy and Liberty
Prevention. The safest and surest way of preventing a terrorist attack is to monitor the activities of every individual or group who may even possibly be planning such an attack. Not only would such monitoring be prohibitively expensive, it would expose large numbers of innocent individuals and groups to surveillance because of some small possibility that they could present a danger. The danger of such broad monitoring of law-abiding citizens depends, in part, on how coercive or intrusive the monitoring is, although any monitoring will be intrusive to some extent. The administration’s program of requesting interviews from thousands of visiting aliens, without arresting them, for example, is unavoidably coercive because of the vast discretionary powers of the Immigration and Naturalization Service (INS). Noncitizens subject to questioning cannot feel free to refuse to answer.
The use of informants, even if not accompanied by secret searches or electronic surveillance, is likely to create a substantial inhibition of speech and a chilling effect on democratic political activity. To avoid this, recent attorneys general have required in published FBI guidelines that the government have a reasonable suspicion that an individual or group is planning violence or acting on behalf of a foreign power or group to further international terrorism, before authorizing any intelligence gathering to prevent terrorism. Although the required predicate has always been somewhat elastic, in times of crisis it will be stretched to the limit to permit monitoring of any groups that vocally support a state or group engaged in terrorism. Such speech is one of the most important, although one of the weakest, open signs that a person is more likely than others to be engaged in terrorist activities. But even this protection—historically respected by attorneys general, requiring reasonable suspicion of actually planning political violence, is unlikely to survive after the events of September 11, and, indeed, is being reconsidered.
Restricting Access to Targets and Resources. A second form of prevention is to deny a certain class of people access to targets or to the resources needed to attack the targets, e.g., denying access to the plane and fuel tank that could be used to attack a highly valued target.
Civil liberties and equal protection problems clearly emerge from this method of terrorism prevention. We must either deny overly broad ethnic categories of people access to targets and resources or we must develop detailed information about members of that group or aliens in general (also a form of discrimination) or about a far wider category of individuals (e.g., all U.S. citizens and residents).
There are real long-term costs to concentrating only on limited ethnic categories when the number of innocent people subjected to investigation or denial of access will vastly exceed the number of legitimate suspects. Every member of the class denied access or subjected to special investigation will be made to feel less than a full citizen of the United States or less than a welcome visitor, and that message evetually will be conveyed to all U.S. citizens.
An alternative to either an ethnically-focused or alien-based monitoring strategy is to use high-powered computers to check all individuals in a large group equally before granting them access to targets or resources. This investigative technique requires three capabilities: (1) a reliable way to identify all individuals seeking access; (2) adequate and reliable intelligence information to identify dangerous people; and (3) an ability to match the two quickly, without great inconvenience. While our government currently lacks all three capacities for this form of prevention, the civil liberty costs will be great, when and if they are developed. Every individual will have to anticipate that: (1) increased amounts of personal information will likely be maintained on him or her by the government; (2) the government will monitor this information more frequently than in the past; (3) the possibility of separating oneself from one’s own recorded personal history will become more difficult; and (4) the process of checking an individual’s identity against recorded files may itself be designed to create and store new records of the individual’s activities.
The use of such computerized systems will not await development of the missing capacities. Even without having complete or even substantial files to match with the identity of individuals seeking access to targets or resources, keeping records of those who are seeking such access may, in itself, be useful. Certain combinations of activities, when identified by intelligence agencies, can raise the suspicion necessary to monitor the individual and his immediate associates. For example, fermenters are used for making beer, but can also be used for making an anthrax weapon. An observation that someone who has no legitimate beer-brewing capacity has bought a fermenter may warrant beginning the first stages of an investigation. But collecting new information and combining it in newly revealing ways will reduce the privacy of many innocent individuals.
In creating new files for preventive purposes, we will be changing the traditional balance between law enforcement and internal security and the cultures associated with each. Almost every nation in the world has an internal security agency that is separate from its law enforcement agency, freed from many civil liberties constraints, and charged with providing the information the government needs (or the chief executive wants) for policy and political decisions and for prevention of dangerous situations. The United States has not taken that direction, instead giving only the FBI an internal intelligence function and narrowing that responsibility to focus almost entirely on counterespionage activities. That too will change.
Detention. Finally, we can try to prevent a terrorist attack by detaining aliens who are in the United States illegally or are removable for cause, if they have had any association with those who have been connected with prior terrorist events. While noncitizens—resident aliens, visitors, and illegal entrants—are entitled to constitutional protections for criminal charges, they remain subject to arrest, detention, and questioning for any violation of the immigration laws that can lead to removal from the United States. When held for removal, noncitizens do not have a right to a free lawyer and their failure to speak may be used against them. Release pending departure can be denied. Detention of several months is thus an option generally available to the government. The President also has asserted the power to do this by executive order, even when there is no violation of immigration laws. In each case, the government would claim to be acting within its powers, although not for the immigration control purposes that justify granting detainment powers, and as it relates to the executive order, without congressional sanction.
The detention may be for purposes of interrogation pending trial or simply to incapacitate an individual for a sustained period of time. The decision of the attorney general, at least occasionally, to deny private access of detainees suspected of having terrorist ties even to their lawyers is a further effort to incapacitate the group. To the extent that the number of people detained is adequate to create a significant chance of interference with terrorist plans, these tactics will be effective.
Still, the strategy may be deeply flawed. It is worth exploring a less drastic alternative. By using "activity" categories, rather than nationality, we might increase arrests for crimes such as using or providing others with false identification papers or stealing credit cards or passports. A much higher percentage of those detained for such crimes might well prove to be dangerous and/or willing and able to provide information than the broader category of illegal aliens. And the technique would not discriminate on the basis of foreign origin or citizenship.
Consequence Management and Emergency (or Wartime) Powers
The key to consequence management is preparation: getting the committed physical and human resources into place, developing the necessary skills, advance training, and determining the proper scope of expanded legal authority required if and when a plausible threat or actual attack occurred. Planning for such eventualities requires envisioning a variety of terrorist scenarios, and the challenges that each presents for resources and governmental authority. The current capacities for consequence management—law enforcement, rescue and health resources and strong leadership to deal with psychological and political ramifications—are wholly inadequate for handling the aftermath of a major terrorist attack or the possible use of weapons of mass destruction.
The critical question for civil liberties is what emergency legal authority should be made available to quarantine or relocate people, to command resources, to take or destroy property, and to search for extremely dangerous weapons. Granting exceptional authority to regulate, prohibit, search, and arrest presents dangers to the normal functioning of a democracy. Yet, such measures may be necessary in extraordinary circumstances. Any provision for such emergency powers must be designed to protect against misuse in ordinary times.
To provide for new legal powers to respond to major terrorist events, we must devise measures to ensure that such powers are available only in the most extraordinary instances, and that such determination is made by those who do not stand to benefit from the expanded powers. A court could approve a president’s determination that a sufficient number of lives are at risk to justify invoking emergency powers, for example. Alternatively, the legislature could have the authority to override the president’s invocation of emergency powers. In either case, it would be desirable to limit the powers to a relatively short time period.
The United States has criminal statutes that apply to terrorists who attack Americans abroad. The Classified Information Protection Act allows the use of classified materials without unnecessarily compromising secrets. The witness protection program protects endangered witnesses, and a variety of mechanisms exist to protect jurors. Furthermore, we have, and have exercised on occasion, the capacity to bring terrorists back from across the world to stand trial in the United States. With this array of powers and authority, the United States has been able to prosecute the terrorists responsible for the first bombing of the World Trade Center and the bombings of the U.S. embassies in Kenya and Tanzania, as well as Soviet spies, Mafia chieftains, and drug lords. I am not aware of any insuperable obstacles to trying dangerous terrorists in civil court, although obtaining strong evidence against those who sponsor terrorism can prove difficult.
On November 13, President Bush signed an executive order allowing him to try non-U.S. citizens in military courts with penalties up to death for activities that the president determines to be involved in international terrorism or harboring international terrorists. The normal rules of evidence in civil cases will not apply; the trial can be closed; the members of a military panel need only decide by two-thirds; and there is no civilian judicial review of the decision (instead of review only by the president or the secretary of defense).
Without any showing of necessity, this assertion of power to punish even resident aliens after an irregular, military trial for actions taken within the borders of the United States shows an arrogant disdain for American pride in, and foreign admiration of, the fairness of our courts.
Our efforts to prevent future terrorist attacks, to deal with the consequences of massive attacks, and to punish terrorists are certain to result in some loss of civil liberties. But we should be careful not to trample democratic traditions unnecessarily. Exercising this care requires seeing where the greatest dangers lie: in the exercise of existing discretionary powers by those in the executive branch, rather than in the recently adopted statutory changes.
Philip B. Heymann is a professor of law at Harvard Law School and the author of Terrorism and America (2000).