SECURITY AND LIBERTY IN AN AGE OF TERRORISM

HERMAN SCHWARTZ

The true danger is when liberty is nibbled away, for expedience, and by parts.”
—Edmund Burke

The September 11, 2001 attack by Osama bin Laden and Al Qaeda stunned Americans. Although not the first such assault in this country—an effort had been made to destroy the World Trade Center just eight and a half years earlier—the deaths of 3,000 people going about their daily lives, and the destruction of one of the most important symbols of American economic power, made it different in kind from other terrorist attacks.

A democracy that feels seriously threatened must decide how it will protect itself. Equally important, though, is how it will at the same time preserve its liberties. For Americans, this is an especially agonizing dilemma. We pride ourselves on our profound and almost unique commitment to liberty, and the legal institutions and civic culture that have made America probably the freest society in history. Oppressed peoples around the globe have looked to us as their champion, despite this country’s all-too-frequent support for repressive regimes abroad.

Yet, when faced with the perception of foreign threats, the American response typically has involved hasty and drastic cutbacks in civil liberties, often far in excess of what was needed or justified. In the process, great harm has been done to the liberties, reputations, and even lives of many innocent people. World War I and its aftermath, for example, produced draconian measures against those who, like Socialist presidential candidate Eugene V. Debs, spoke out against the war. During World War II, 112,000 West Coast Japanese, including 70,000 American citizens, were interned in what essentially were concentration camps. The witch hunts, blacklists, and ruined reputations of the early Cold War years still haunt us. And the many CIA and FBI abuses of Vietnam War opponents are fresh in the minds of many Americans.

This historical pattern is being repeated today. Immediately after September 11, President George W. Bush declared a “war on terrorism” that would be worldwide and would continue far into the future. Within hours of the attack, Attorney General John Ashcroft had the Department of Justice prepare legislative proposals. Prosecutors pulled out their old wish lists of powers continually denied to them, and threw them into a massive legislative proposal which, with other provisions, became the 342-page USA-Patriot Act. When it was rushed through just six weeks later, few members of Congress had read the bill, and many voted for it with misgivings. So great was the pressure to take some protective action against terrorism, however, that only one senator and 66 House members voted against it.

In 1837, Alexis de Tocqueville warned that “No protracted war can fail to endanger the freedom of a democratic society... All who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.” The Patriot Act and the way it was passed confirm the wisdom of Tocqueville’s observation. Patriotic fervor swept the country, drowning out and, indeed, condemning any voices of moderation as unpatriotic and even treasonous. Politicians seized on the issue for partisan purposes, while law enforcement officials used the occasion to press for ever-broader powers that had been denied them in the past. Security measures were enacted hastily, with no time for close scrutiny and careful deliberation by either the public or its representatives.

Much of this was done to gain more information about the enemy. But the problem prior to September 11 was not a lack of information, according to the 9/11 Commission Report, issued in the summer of 2004. Instead, the problem was inadequate attention to the information that was available. An August 6, 2001, Presidential Daily Briefing, entitled “Bin Laden Determined To Strike in US,” contained information on ongoing Al Qaeda activities in this country, including efforts to establish a terrorist support network and uncorroborated information that had been obtained in May 2001 about a possible explosive attack. There also were reports in August that Al Qaeda might use planes as missiles. All this was ignored by senior officials. At lower levels, there was a near-total lack of attention, analysis, and cooperation between and within the CIA and the FBI.

Nevertheless, the United States was indeed too casual about national security, and additional legislative and other measures were necessary after 9/11.Unfortunately, many of the measures adopted so far threaten privacy, due process of law, and other basic values without corresponding evidence that these changes will enhance the safety and security of the American people.

PRIVACY IS COMPROMISED

Although the Patriot Act obviously contains some needed measures, the grave threats it poses to privacy have led state and local legislators to pass resolutions against it in Alaska, Hawaii, Vermont, and Maine, and almost 300 localities representing nearly 50 million people in 39 states. One particularly disturbing provision is Section 213, familiarly known as the “sneak and peek” law, under which FBI agents can enter your house secretly, take or copy anything they want, and not tell you about it for months. This power is not limited to terrorist crimes, but covers all federal offenses, including those having nothing to do with terrorism, like white collar crime. Indeed, it appears to have been used mostly for those other crimes. Even former Speaker Newt Gingrich has said, “In no case should prosecutors of domestic crimes seek to use tools intended for national security purposes.”

Equally troubling are the new powers over libraries, bookstores, Internet service providers, credit card companies, and many other businesses. In the mid-1980s, the FBI asked libraries to report who was reading unclassified technical and scientific materials, and what they were reading. When the librarians balked, the FBI dropped the requests. The Patriot Act revived the program and this time makes compliance mandatory. Under Section 215, the FBI can obtain a court order requiring the library to hand over the records of anyone who has ever used a neighborhood or university library. Not only must the library disclose the information, it may not tell anyone of the FBI requests.

The Patriot Act also makes it much easier to obtain a “national security letter,” whereby the FBI can require an Internet, phone, and other electronic communication service provider to disclose a vast amount of subscriber information, including local and long-distance toll billing records. No court order is necessary, only a letter from the special FBI agent in charge in a Bureau field office stating that the information is “relevant” to terrorism or intelligence investigations, an easy standard to meet. These FBI requests also must be kept secret.

In September 2004, a federal court in New York City ruled that the “national security letter” provisions violated the Fourth Amendment search and First Amendment free-speech provisions of the Constitution. Since the case is subject to appeal, the ultimate outcome is uncertain.

The threats to privacy come not just from the Patriot Act.Miniaturized cameras on street corners, computers that pull together masses of database information, sensitive microphones that can hear conversations from great distances—all these are already in use. In Washington, DC, an experimental multi-computer facility that is shared by the FBI, local police, the Secret Service, and others can link thousands of cameras in shopping malls, department stores, and office buildings, and also receive live data from six helicopters at once. Other large cities are thinking of installing this technology, which costs about $7 million.

In Pittsburgh, the FBI has set up a Strategic Medical Intelligence unit. Doctors in Pennsylvania and West Virginia are expected to notify the unit of any “suspicious” event, from an unusual rash to a finger lost in an explosion. The patient is to be identified, but is not to be told about the reporting.

UNDERMINING DUE PROCESS
AND CHECKS AND BALANCES

In pointing out the dangers to democratic freedoms, Tocqueville explained that a protracted war “must invariably and immeasurably increase the powers of civil governments; it must almost compulsorily concentrate the direction of all men and the management of all things in the hands of the administration.” This scenario is being played out today.

Perhaps the most controversial example has been the government’s claim that, as commander in chief, the President can classify anyone he wishes, anywhere in the world, citizen or non-citizen, as an “enemy combatant,” arrest such persons, confine them indefinitely, deny them any contact with their families or a lawyer, and do anything that he wants to them. The government also asserts that the President can have “enemy combatants” tried on vague “terrorism” charges by a military tribunal, defended only by military officers under rules of evidence and other procedures set by the Department of Defense, and sentenced to any punishment (including death). All of this can be done with no outside review by the courts, Congress, or the public.

At this point, at least two American citizens and hundreds of foreign nationals have been classified as “enemy combatants.” Some 600 of the latter, many of whom claim to be innocent of any wrongdoing, were being held at the Guantanamo Bay Naval Base in Cuba, though some were released this summer.Most were captured in Afghanistan, but others were captured from over 40 other countries as far from Afghanistan as Gambia and Bosnia.

Few US government actions in recent years have drawn as much condemnation abroad and at home as the “enemy combatant” claims. These measures strike at both the rule of law and the checks-and-balances system. The constitutional imperative that “No person shall...be deprived of life, liberty or property without due process of law,” to be upheld, must allow governmental actions affecting individual rights to be reviewable by a court of law. The insistence that no independent judicial or other tribunal can review a President’s actions as commander in chief towards “enemy combatants,” including the determination of whether someone has been classified properly as such, elevates the Executive above the law. The government seems to have forgotten that the American Revolution was fought in part because, as the Declaration of Independence points out, George III “has affected to render the Military independent of and superior to the Civil Power.”

The constitutional reference to “No person” also makes it clear that no distinction is drawn in this regard between citizens and foreigners, although what constitutes “due process” may vary.When other nations have detained and deprived people of their rights, whether citizens or non-citizens, the US government has condemned these actions without hesitation. Those condemnations will not carry much weight anymore.

THE SUPREME COURT STEPS IN

The Supreme Court’s decisions on June 28, 2004, cleared up a few of those matters, but left most questions unanswered.

Guantanamo Bay—Because Guantanamo Bay is held by the United States under permanent lease from Cuba, which retains “ultimate sovereignty,” the US government claimed that no American court was authorized even to look into anything happening at Guantanamo, despite the fact that the United States exercises total control over the base. The government also asserted that the Geneva Convention calling for humane treatment of prisoners of war does not apply to the Guantanamo Bay detainees. Indeed, a series of memoranda prepared by the top lawyers at the Justice and Defense departments argued that no law of any kind—domestic, international, or other provisions of the US Constitution—can limit the President’s constitutional powers as commander in chief, a position argued to the Supreme Court in Hamdi v. Rumsfeld,which involved one of the two American citizens detained as “enemy combatants.”

In June 2004, in Rasul v. Bush, the Supreme Court ruled that federal courts may consider challenges to the legality of detentions at Guantanamo. The Court said nothing about the specific rights that foreign detainees may exercise in such challenges. Lawyers seeking to represent detainees, for example, have found it almost impossible even to see their clients, much less represent them adequately. At the same time, military guards, intelligence agents, and others who worked there reported that many detainees have been subjected to harsh interrogation tactics.

Citizen detainees—The same day as the Guantanamo Bay ruling, eight justices of the Supreme Court, with only Justice Clarence Thomas dissenting, rejected the government’s position that the President’s authority over all enemy combatants is absolute and unreviewable. In an opinion for four of the justices, Justice Sandra Day O’Connor insisted that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker...[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

The rhetoric was stronger than the actual ruling. The Court allowed the use of hearsay evidence and even raised the possibility that a military tribunal would be adequate. Many other questions were left unanswered, and how the decision will be applied, including how much, if any of it, will be applied to foreign detainees, remains unclear.

In a startling development a few weeks after the decision, the US government decided to release Hamdi without further processing, on condition that he give up his American citizenship and return to Saudi Arabia, where he also holds citizenship, to which he agreed. Since the other case involving an American citizen had to be started afresh because of procedural problems, the ambiguities and uncertainties about what process is due “enemy combatants” have not been resolved.

THE TORTURE REVELATIONS

On April 28, 2004, the same day the Hamdi case was argued, the world learned of the sexual and other brutalities at the Abu Ghraib prison in Iraq. In the ensuing weeks, there were further revelations of abuse at Abu Ghraib and elsewhere, and investigations were launched. While the government continued to argue that only a few “bad apples”were involved, it soon became clear that harsh coercive techniques to obtain information were authorized by Defense Secretary Donald Rumsfeld, the CIA, and perhaps by the White House. The same memos that asserted the breathtaking sweep of power for the President as commander in chief defined “torture” for purposes of both American and international law as limited to actions that inflict pain equivalent to injuries “such as organ failure, impairment of bodily function, or even death,” a definition rejected as too narrow by almost all international authorities and many State and Defense department lawyers. The memos also advised that treatment that is only “cruel, inhuman, or degrading” is permissible, even though both domestic and international law condemn such treatment. Also, for those military personnel who committed acts of torture even within these definitions, the Department of Defense memo devised novel “self-defense” and “military-necessity” defenses, and approved a defense of superior orders, none of which are recognized as legitimate excuses. The White House quickly repudiated the Department of Justice memo after it was leaked to the press in June 2004, even though it had been in effect since early 2002 and had been described by the White House counsel as the “definitive interpretation” of the law.

HOMELAND SECURITY, AND SECURE LIBERTIES

Calling for a “war on terrorism” does not help with those dangers that do exist. As Fareed Zakaria, author of The Future of Freedom: Illiberal Democracy at Home and Abroad, writes, this approach “distorts thinking by suggesting that there is an easily identifiable enemy and an obvious means of attack.” It leads us to think that massive military force will make Americans safe. As Zakaria notes, “the vast bulk of anti-terror operations, in America, Europe, or elsewhere, is aggressive deterrence and prevention at several levels done by police, intelligence agencies, and other nonmilitary bureaucracies.”

We also must realize what we have been told repeatedly: Terrorism grows out of social and cultural forces. It feeds on serious and often justified grievances about social and economic stagnation, poverty, repression and frustration, to which our support for repressive and corrupt regimes in the Middle East and elsewhere has contributed. Richard Clarke, former White House terrorism advisor, and others believe that in the Middle East, in particular, terrorism is the by-product of a struggle within Islam between moderates, modernizers, and radical fundamentalists. Anti-terrorism efforts must take these factors fully into account, which requires knowledge, understanding, and much patience. These efforts also must reflect our commitment to freedom and human dignity, and be backed up by our conduct at home and abroad.

America does need to tighten its security. But every restriction of liberty must be shown to be necessary, likely to be effective, and no more restrictive than needed. Few of the measures discussed here meet these criteria. As Benjamin Franklin once observed, “They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” We seem to have forgotten that point again.

Herman Schwartz (CC ’98), a professor of law at The American University’s Washington College of Law, has worked for civil liberties and civil rights at home and abroad. He also advises foreign governments on constitutional and legal reforms.

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