A sustained war against terrorism in the United States is unlike any war we have ever fought: the enemy is diffuse; the targets are civilians; the threat is constant and the war may never reach a decisive public end. But as government takes affirmative steps to protect civilians, we must not allow the war to become an excuse for the government to do whatever it likes. Government has an obligation to protect the safety and security of its citizens, but it has an equally important responsibility to safeguard the freedoms and liberties that are the cornerstones of American democracy. Security and civil liberties do not have to be at odds, nor put on a collision course. Our goal should be to keep the American people both safe and free.
Admittedly, the terrorists who attacked the United States on September 11, 2001, took insidious advantage of American liberties and tolerance. They lived in our communities and enjoyed our freedoms. That does not mean, however, that those freedoms are at fault. Americans are equally concerned about the government doing too little to combat terrorism and too much to restrict liberty.
Recent changes to U.S. laws have given government expanded power to invade our privacy, imprison people without meaningful due process, and punish dissent.
The United States is facing a serious threat to its security. However, that threat is directed to our democratic values and freedoms. Consequently, every proposal to restrict liberty should be made to pass a "necessary and defensible" test. That is, we need to ask: (a) is the restriction necessary, i.e., will it, in fact, increase our security; and (b) is it defensible, i.e., will the increased benefit to security outweigh the cost to constitutional guarantees of procedural fairness, free speech, and privacy?
The USA Patriot Act
The USA Patriot Act (Patriot Act) is the cornerstone of the Bush administration’s anti-terrorism efforts. However, there are many provisions of the Act that simply do not meet the basic test of maximizing our security and preserving our civil liberties:
1. The overly broad definition of "terrorism." The Act creates a federal crime of "domestic terrorism" that broadly extends to "acts dangerous to human life that are a violation of the criminal laws" if they "appear to be intended . . . to influence the policy of a government by intimidation or coercion," and if they "occur primarily within the territorial jurisdiction of the United States." This definition could easily be used to describe many forms of civil disobedience, including legitimate and peaceful protest.
2. The indefinite detention of immigrants based on the attorney general’s certification of a danger to national security. This is a harmful provision with language so vague that even the existence of judicial review would provide no meaningful safeguard against abuse.
3. Expanded wiretap authority. The new legislation minimizes judicial supervision of law enforcement wiretap authority by permitting law enforcement to obtain the equivalent of blank search warrants, and by authorizing intelligence wiretaps that need not specify the phone to be tapped or be limited to the suspect’s conversations.
Under current law, authorities can require a telephone company to reveal numbers dialed to and from a particular phone simply by certifying that this information is "relevant to an ongoing criminal investigation." This is far less than the probable cause standard that governs most searches and seizures. The new law also extends this low level of proof to Internet communications, which unlike a telephone number, can reveal personal and private information, such as the Internet sites an individual has visited. Once this standard is applied to the Internet, law enforcement officers will have unprecedented power to monitor what citizens do online, thereby opening a "back door" on the content of personal communications.
4. The use of "sneak and peek" searches to circumvent the Fourth Amendment. Under this segment of the legislation, law enforcement officials could enter your home, office, or other private place and conduct a search, take photographs, and download your computer files without notifying you until after the fact. This delayed notice provision undercuts the spirit of the Fourth Amendment and the need to inform individuals when their privacy is invaded by law enforcement authorities.
5. The evisceration of the wall between foreign surveillance and domestic criminal investigation. The new legislation gives the director of central intelligence the power to manage intelligence gathering in America and mandates the disclosure of terrorism information obtained by the FBI to the CIA—even if it involves law-abiding U.S. citizens.
Tribunals, Detention, and Profiling
In November 2001, President Bush issued a military order providing for potentially indefinite detention of any noncitizen accused of terrorism, and permitting trial of such defendants in a military tribunal. The order was issued without a formal declaration of war or any authorization by Congress. Notwithstanding improvements in the new regulations, the tribunals do not guarantee due process for the accused. The burden of proof, rules of evidence, and access to judicial review are significantly weaker than in civilian courts. Also compromised are the right to choose one’s own lawyer, the right to a jury by one’s peers, the right to be tried in courts that are independent of the prosecution, and the right to appeal convictions.
Equally troubling is the fact that hundreds of immigrants have been arrested and detained since September 11. The vast majority had nothing to do with the terrorist attacks. Many are charged with minor immigration violations. Yet, the proceedings surrounding their detention have been shrouded in secrecy, thereby impeding the public’s ability to scrutinize the actions of the Immigration and Naturalization Service (INS) and other law enforcement officials. Civil liberties and human rights groups have filed a Freedom of Information Act lawsuit, which seeks basic information on the detainees and the charges brought against them. The American Civil Liberties Union (ACLU) is currently exploring additional legal channels to challenge the treatment and prolonged detention of hundreds of immigrants.
Government efforts to identify and question 5,000 men of Middle Eastern origin have also raised civil liberties concerns. While the government argues that the questioning is "voluntary," many argue that the interrogations are inherently coercive and that the individuals have been identified merely based on their country of origin. Aside from engaging in racial profiling, such efforts are an ineffective approach to law enforcement since they squander limited resources in casting such an overly broad net.
One final measure that has raised a significant outcry is a recent regulation that allows the government to pierce the attorney-client privilege. The new rule also allows surveillance without notice, and casts a shadow on the integrity of the bar and its role in society.
Unfortunately, the debate over changes in law enforcement powers has drawn attention away from more salient questions—namely, how did the events of September 11 evade our intelligence services? What powers do law enforcement agencies now have that they didn’t have then? And, how can these powers be used more effectively to combat terrorism? A full federal investigation surrounding the events of September 11 would provide the government and the American people with a better understanding of the failure in our law enforcement and security apparatus and what is needed to remedy it.
The Importance of History
American history reminds us that we have tended to move in the wrong direction in times of national emergency. We can take three valuable lessons from our past:
1. Conscription of opinion often goes hand in hand with conscription of soldiers. During World War I, soldiers were not the only ones conscripted; public opinion and the First Amendment were also conscripted as the government attempted to squelch free expression and dissent.
Similar actions were taken during World War II. Sadly, we are seeing similar efforts to conscript the First Amendment in service of the "war against terrorism." ACLU offices across the country have begun receiving complaints of efforts to limit free speech. On the campuses of colleges and universities, we are hearing about efforts to limit academic freedom and quell dissent and debate.
On October 11, 2001, we saw troubling efforts to conscript public opinion when the White House requested that broadcast media outlets edit or decline to show any videotapes of Osama bin Laden. Apparently, the White House was concerned that the tapes would communicate secret messages or codes to other terrorists living in the United States. No proof of this was provided in the White House request, and in any case, the tapes were broadcast worldwide and were available online. Several weeks later Attorney General John Ashcroft attempted to equate support for civil liberty with aid to terrorists, proclaiming that public debate would "erode our national unity . . . diminish our resolve . . . give ammunition to America’s enemies, and pause to America’s friends." More shocking than his statements was the fact that most members of the Senate Judiciary Committee before which he was testifying failed to take issue with such clearly anti-democratic sentiments.
Our democracy is built squarely on principles of free speech and due process of law. Each and every one of us must speak up in the firm conviction that by so doing, we strengthen our nation. Democracy has many great attributes but it is not a quiet business.
2. National crises tend to encourage gross violations of due process. Following World War I, strikes in our nation’s cities terrified millions of Americans who saw law and order collapsing. In 1918, riots broke out, paralyzing the country, and federal troops were called in to restore order in many cities. In June of that year, the country was shaken by a series of politically motivated bombings, including an explosion at the home of Attorney General A. Mitchell Palmer.
During raids, law enforcement officials swooped down on suspected radicals in thirty-three cities, arresting thousands of people, most of them immigrants. The raids involved wholesale abuses of the law: arrests without a warrant, unreasonable searches and seizures, wanton destruction of property, physical brutality, and prolonged detention. The Palmer Raids, as they were known, eventually led to the founding of the ACLU by Roger Baldwin and a handful of others.
Government officials need to reassure us that the Palmer Raids were just a sad chapter in history and that our constitutional protections are in place.
3. Our national leaders will often exploit popular fear of foreigners during crisis periods. Theodore Roosevelt, during World War I, warned that the "Hun within our gates is the worst of the foes of our own household." His comment reflected the xenophobic sentiment in our country that led to racial profiling and ethnic bashing aimed against Germans, Italians, Jews, and Eastern Europeans.
But the most traumatic example of this type of national xenophobia took place during World War II, when the government interned more than 120,000 Japanese-Americans from the West Coast.
These examples explicitly demonstrate why we must resist the temptation to overreact, to rush to judgment. Terror, by its very nature, is intended not only to destroy, but also to intimidate a people, forcing them to take actions that are not in their best interest.
That’s why defending liberty during a time of national emergency is the ultimate act of defiance and patriotism. For if we are intimidated to the point of restricting our freedoms, the terrorists will have won. We should be prepared not only to react, but also to be proactive, offering alternative solutions where feasible.
A proactive agenda has several components. First, we must think carefully and clearly about the trade-offs between national security and individual freedom, and to understand that some will seek to restrict freedom for ideological and other reasons that have little to do with security. Second, citizens need to stay informed and involved in the current congressional deliberations on anti-terrorism legislation. We must remain vigilant not just in Washington, D.C., but in our state capitals and city councils since elected officials are also attempting to pass new security legislation at the state and local levels.
Third, we must demand that government take the necessary steps to prevent and punish unwarranted, bigoted attacks on fellow citizens of Arab descent and members of religious minorities, including Muslims and Sikhs because, in the words in 1939 of the ACLU board of directors, "When the rights of any are sacrificed, the rights of none are safe."
Fourth, we must keep the pressure on other issues. We must not lose the momentum on important struggles like the death penalty or electoral reform. The tide was with us on these and other issues prior to September 11 and we must keep the pressure on. Fifth, we must demand government accountability and responsiveness to civil liberties.
Finally, we should establish guidelines for evaluating new proposals that would affect our basic civil liberties. At the very least, proposed changes to restrict liberty should be examined and debated in public; they should be proven effective in increasing safety and security, and they should be fairly applied in a nondiscriminatory manner.
As the late Supreme Court Justice Thurgood Marshall wrote in a 1972 Supreme Court opinion: "This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system."