Civil libertarians are often derided for exaggerating threats to liberty or exaggerating the importance of liberties that majorities disdain—the liberty to utter racial slurs, play violent video games, or deface a U.S. flag. Many dismiss the claim that the war on terrorism has created a civil liberties emergency. It's not surprising; fear of terrorism is much stronger than fear of domestic repression—or love of liberty, which is always equivocal.
In the decade before the terrorists struck in 2001, freedom was under threat from fear, or righteousness, or both. Whether they sought to reinstate official school prayers, restrict the rights of criminal suspects, or censor "harmful" and "offensive" speech (from pornography to racial slurs), antilibertarians flourished during the 1990s, right, left, and center. In Washington, Democrats and Republicans joined in bipartisan attacks on liberty.
War is always a threat to liberty, and we always seem to be engaged in a war against some scourge or other. Before there was a war on terrorism, there was a war on drugs, which spawned an epidemic of racial profiling and greatly eroded our privacy, among other liberties. Before there was a war on terrorism, there was a war on crime and strong opposition to the constitutional rights afforded criminal suspects. Before there was a war on terrorism there was a war on pornography, a hardy perennial. Before there was a war on terrorism there was a war on the federal judiciary, initiated by conservatives who decried judicial activism (when practiced by liberals) but eventually joined by centrist Democrats: With Bill Clinton's support, Congress passed laws severely restricting the power of the courts to review violations of individual rights—mainly the rights of despised or marginalized members of society, such as prisoners, poor people, and immigrants. The 1995 Prison Litigation Reform Act, for example, greatly limited the power of federal courts to monitor conditions in state prisons. The act did not deprive prisoners of their constitutional rights in theory; it simply deprived them of their remedies when rights are violated. All these wars—on drugs, the rights of suspects, pornography, and judicial review—preceded the war on terrorism and would proceed without it.
So before considering the repression that has accompanied antiterrorism initiatives, it's important to remember that attacks on liberty didn't commence on 9/11; they intensified. America's proverbial love of liberty is matched by mistrust or fear of it. The paradox is only natural. A commitment to liberty is a commitment to defending the rights of people you fear or disdain, and that commitment is never widely shared. How could it be? Individual rights protect minorities against the excesses of majority rule. We should hardly expect them to enjoy majority support.
It would be naïve to expect many Americans to care about the rights of individuals suspected of supporting or engaging in terrorist acts, even though some people are suspected or accused unfairly. And it would be misleading to suggest that none of our liberties need be restricted in response to the terrorist threat. In the best of times, some freedom must be sacrificed to security. That's why we have a penal code: People shouldn't be at liberty to rape, pillage, or drive drunk (although they should be at liberty to get drunk or otherwise intoxicated). But a general proposition is not true in every case: not every sacrifice of liberty will make us more secure, as the Bush administration seems to want us to believe. The first question we should ask of any law that erodes our freedom is, "How will this make us safe?"
But when the president and attorney general assure us that they're enhancing our security, many Americans are eager to believe them. Instead of asking, "Precisely how will your new laws and policies and this new sacrifice of liberty protect us?" they say, "Thank you." Besides, while it's hard for us to feel safe from the threat of another attack, it's still relatively easy for a majority of Americans to feel free: Many recent law enforcement abuses, notably the detentions of people without due process, have targeted Middle-Eastern immigrants and Muslims, not native-born or Christian majorities. And, many of the new powers exercised by federal law enforcement agents—like the power to examine library records or read e-mail messages—are exercised in secret.
Public ignorance of new federal law enforcement power is profound. Consider the USA Patriot Act. Hastily passed in October 2002, the new counterterrorism law, more than 300 pages long, was drafted by the administration and approved by Congress before many members had read it. This law was presented as an essential response to 9/11, but it included expansive new powers that some in law enforcement had been seeking for years—powers that may be applied in ordinary criminal cases as well as investigations of terrorism.
Was this law necessary to enhance security? It was passed without any demonstration that the 9/11 attacks might have been prevented if the administration had previously enjoyed the powers granted in the Patriot Act. In fact, subsequent revelations of intelligence blunders suggest that the attacks were facilitated by failures of law enforcement and intelligence agencies to make effective use of the considerable powers they already had. So, whether the USA Patriot Act makes us more secure is highly questionable; but there's no question that it enhanced the power of the executive branch at the expense of the judiciary, mainly by minimizing judicial review of federal law enforcement efforts whether they target terrorism or not. The new counterterrorism law includes provisions that:
- expand the power of federal agents to conduct secret "sneak and peek" searches and electronic surveillance with minimal judicial supervision, in ordinary criminal cases as well as terrorism investigations;
- authorize secret searches of library and bookstore records and the criminal prosecution of librarians or bookstore owners who merely reveal that their borrowing or sales records have been searched;
- empower the attorney general to detain noncitizens without probable cause to believe they are guilty of any crimes, to hold them for seven days without filing charges against them, and to detain them indefinitely without any meaningful judicial review;
- authorize the criminal investigation of U.S. citizens without probable cause as long as federal agents assert that the investigation is for "intelligence purposes"; and
- empower the attorney general to designate domestic groups as terrorist groups, based on a vague new definition of domestic terrorism that could include political dissidents and legitimate advocacy groups, like Greenpeace.
Supporters of this law minimize the dangers it poses to civil liberties, insisting that we can trust the attorney general and other federal agents not to abuse their powers and to use them only against terrorists or illegal immigrants, and not against ordinary Americans. I'm skeptical. Given the number of people wrongly prosecuted for ordinary criminal offenses in ordinary times, it's hard to imagine that innocents won't be sacrificed to a war against terrorism. But, in any case, it's difficult to evaluate the administration's willingness to exercise these new powers with care and respect for civil liberty, because of its penchant for secrecy.
The White House and Justice Department have not just been keeping secrets from the public—few people expect the details of terrorism investigations to be publicized—but they have also been keeping secrets from Congress and the courts: The attorney general, for example, has resisted answering questions from the House Judiciary Committee regarding enforcement of the Patriot Act. The Bush administration insists on operating unilaterally, without judicial or congressional review—without accountability—in the sorry tradition of imperial presidencies.
It's not surprising that some members of Congress and the judiciary have fought back. Presidents can often muster broad if shallow support for war by painting dissent as unpatriotic; but over the longer term, the House and Senate do not cede their powers without a fight. Shortly before the 2002 elections, some senators and representatives from both parties asserted their right to oversee enforcement of counterterrorism laws and investigate intelligence failures. A few judges questioned the constitutionality of secret, summary detentions and deportations. You can dismiss these conflicts as turf battles, but they're essential to our democracy. Turf battles define the separate branches of government, which are designed to divide power in order to prevent its abuse.
Some of the boldest and most egregious violations of civil liberty have not even been authorized by the Patriot Act; they follow from regulations or mandates issued by the administration. Consider the summary and often secret detentions of suspected or "potential" terrorists that have pitted the Bush administration against some federal courts.
In the name of fighting terror, the administration has claimed the unilateral power to detain anyone, including a U.S. citizen, without proffering formal charges, allowing access to an attorney, or presenting any evidence of guilt, much less providing a trial. Instead of presenting evidence against them, the administration simply labels people "enemy combatants." Jose Padilla, a U.S. citizen arrested in Chicago and informally accused of planning to detonate a dirty bomb, has been incarcerated since May 8, 2001, without being charged or brought before a court of law. His arrest was trumpeted just when the FBI was coming under fire for its pre-9/11 blunders. But since his arrest, the administration has revealed no evidence confirming or even suggesting that Padilla was involved in a terrorist plot. Of course critics of the government can offer no evidence of Padilla's innocence, but that's not their job. Law enforcement agents are supposed to have good reasons for making arrests—reasons they're required to share with the judiciary. The government is not supposed to enjoy absolute power to incarcerate you, without even demonstrating a basis for suspecting that you're guilty of a crime. A declaration by the attorney general that he believes in your guilt does not qualify as a demonstration of it.
Padilla may have associated with terrorist organizations; he may even have planned or hoped to engineer an attack. But considering the government's refusal to reveal any evidence of his guilt to any court, considering that the announcement of Padilla's arrest conveniently interrupted a very bad news day for the administration, it's easy to believe that Padilla's arrest served the political interests of the administration at least as much as it served the security of the nation.
The administration's power to disappear its own citizens is being tested in the case of Yasser Hamdi, who was born in the United State of Saudi parents and captured last fall in Afghanistan by the Northern Alliance. (Hamdi's family says he was engaged in humanitarian work in Afghanistan.) Lawyers for the Justice Department have refused federal district court judge Robert Doumar's demands for evidence that supports their designation of Hamdi as an enemy combatant and justifies detaining him indefinitely without ever trying him. The government has merely given Judge Doumar a two-page statement from a "military adviser" named Michael Mobbs. In reviewing the statement, Judge Doumar observed that it contained no allegations that Hamdi had even fired a weapon or that he was a member of Al Queda; it simply asserted that he had been "affiliated with a Taliban military unit." The judge was unimpressed, suggesting that due process requires more than "a basic assertion by someone named Mobbs" who had reviewed papers regarding Hamdi and declared he was a military combatant.
What does due process require of the government during this undeclared and possibly endless war? In an earlier appeal in the Hamdi case, the Fourth Circuit Court of Appeals in Richmond, Virginia, one of the most conservative federal courts in the nation, held that the government cannot detain a U.S. citizen indefinitely "with no meaningful judicial review;" but what "meaningful review" comprises is still unclear. The Fourth Circuit is expected to issue another ruling in this case by the time this article appears. Eventually, the Supreme Court is likely to determine the scope of executive power to imprison citizens summarily by labeling them terrorists or enemy combatants.
Meanwhile, the administration is also wrangling with federal judges over the power to disappear noncitizens. About 1,200 people were detained in the two months after 9/11. That much the government revealed. Then in November 2001, the Justice Department announced that it would no longer tell us how many people were being arrested. It has always refused to disclose other pertinent details, such as their names, the circumstances of their arrests and detentions, and the nature of any charges filed against them. At one point, Attorney General Ashcroft asserted that he was concealing information about the detainees in order to protect their privacy.
A consortium of civil rights and civil liberties groups filed lawsuits under the Freedom of Information Act, and finally, in August 2002, federal district court judge Gladys Kessler ordered the administration to release the names of the detainees and their attorneys (except those detainees whose identities as material witnesses are sealed by court order and those who choose not to have their names revealed.) The court allowed the government to withhold dates and locations of arrest, detention, and release. Judge Kessler's order was stayed pending appeal and, as of late November, the appeals court had yet to rule.
None of the people detained after the attack were charged in connection with it. But the administration wants us to believe that these detentions deterred terrorism, and the Justice Department argues that information about the detainees has been withheld in the interests of security. Judge Kessler pointed out the speciousness of the security excuse, noting that the government has voluntarily released the names of numerous people allegedly connected with Al Qaeda, including people who've been arrested. In fact, when it serves its political purposes, the administration announces arrests of suspected terrorists with great fanfare. Right around the anniversary of 9/11, five people belonging to an alleged terrorist cell in upstate New York were arrested and identified, and the arrest of alleged Al Qaeda member Ramzi bin al-Shibh in Pakistan was front-page news.
Judge Kessler observed that the government offered no explanation for its willingness to disclose the names of some allegedly dangerous terrorists while withholding the names of people not associated with any terrorist activity. But the explanation is clear: Arresting people apparently innocent of any connection to terrorism can be embarrassing, especially when the arrests are of questionable legality. Arresting people who might actually be involved in terrorism confers bragging rights. "He thought he could hide," President Bush said of bin al-Shibh. "He thought he could still threaten America. But he forgot the greatest nation on earth is after them, one person at a time."
It's hard to dispute the need for some secrecy in combating terrorism. But it's equally hard to deny that secret arrests and detentions are "odious" to democracy, as Judge Kessler stressed. "Democracies die behind closed doors," the federal appeals court for the Sixth Circuit held in August 2002 when it struck down a Bush administration policy requiring that all deportation hearings of people suspected of terrorist ties be held in secret. The court was not insensitive to security concerns; it held that hearings may be closed on a case by case basis, if the administration demonstrates the need for secrecy. If, instead, the administration enjoys absolute, unilateral authority to decide what information to reveal and what to conceal, the people are denied an opportunity to evaluate its actions, to know whether it "acts fairly, lawfully, and accurately. . . . [S]elective information is misinformation," the court held.
As long as most Americans remain ignorant of the unprecedented powers recently assumed by the executive branch, as long as they fear another terrorist attack more than they fear being hauled off by federal agents in the middle of the night, or more than they fear being constantly monitored, they'll recognize no threat to their liberty. It's worth noting that nearly 90 percent of people surveyed in November 2001 by the Washington Post supported the post-9/11 detentions of some 600 immigrants. Maybe they assumed that the government would not arrest people with no connection to terrorism. Maybe they didn't think or care about haphazard arrests, so long as they weren't subject to them. "I'm a white, middle-class housewife," one woman recently said to me. "They're not going to arrest me. Why should I care about the detainees?"
I suspect that her sentiments are widely shared although not often expressed so directly, and given her experience, they defy argument. If I answer her with a moral appeal, citing our common obligation to care about repression and injustice, she'll consider me naïve or priggish. If I respond pragmatically, arguing that the FBI agents who come today for a Middle Eastern immigrant might come tomorrow for her son, she'll think I've come unhinged. For many Americans, the liberty apparently lost to the war on terrorism has been limited: They endure longer lines and occasionally intrusive searches at airports. A September 2002 poll (sponsored by National Public Radio, the Kaiser Foundation, and Harvard's Kennedy School of Government) found that only 7 percent of people surveyed believed they had lost important rights and liberties to the war on terrorism. More than three quarters said that their own rights and liberties remained intact. A white middle-class housewife is probably right to assume that neither she nor her family will be arrested as terrorists anytime soon.
Of course, if she becomes involved in political protests—if, for example, she joins the antiglobalization movement and demonstrates at a World Trade Organization event—her chances of being swept up in the war on terror increase, given the administration's new power under the Patriot Act. But you don't have to join a protest movement condemned as extreme or "terroristic" to be subject to government surveillance. That was one lesson of the 1960s, when the FBI spied on and harassed domestic political dissidents, including the Rev. Dr. Martin Luther King Jr. During the 1970s, new restrictions were imposed on domestic spying by the FBI (restrictions recently lifted by Attorney General Ashcroft), but political protesters still risked being targeted by police spies. In Denver, several years before the 9/11 attack, local police monitored the activities of peaceful advocacy groups, maintaining records on individuals guilty of associating with organizations like the pacifist American Friends Service Committee, which was labeled a "criminal extremist group."
We can expect police surveillance and other erosions or outright deprivations of freedom to become increasingly common. Liberty is naturally seen by many Americans as terrorism's accomplice. As John Ashcroft famously asserted in his 2001 testimony before Congress, people who exercise their rights of dissent to criticize the administration "only aid terrorists."
Ashcroft was roundly criticized by civil libertarians for this veiled threat to dissenters, but at least a plurality of Americans seems to share his hostility to dissent. Opposition to First Amendment rights is at a five-year high, according to the Freedom Foundation, which surveys public attitudes toward the First Amendment annually. In 2002, virtually half of survey respondents (49 percent) said the First Amendment "goes too far" in guaranteeing rights, compared to 39 percent in 2001 and 22 percent in 2000. Press freedoms and the right to dissent or offend were particularly unpopular.
These findings were predictable. When the country is at war or people feel beseiged, repression escalates. In the early days of the republic, the Alien and Sedition Acts of 1798 made it a crime to criticize the government. During World War I, before the Supreme Court recognized rights of political speech, Congress passed the Espionage Act, which criminalized antiwar protests. Emma Goldman was imprisoned and deported under the Espionage Act for criticizing the draft. Eugene Debs was imprisoned for delivering a speech about socialism in which he acknowledged that he abhorred war and told his audience that they were "fit for something better than slavery and cannon fodder." During the Red Scare of the 1920s, when J. Edgar Hoover got his start, thousands of immigrants were summarily detained and deported during the notorious Palmer raids.
Since then the Supreme Court has greatly expanded rights of political advocacy and invoked the Constitution to protect individuals against the government. Freedom of speech found influential defenders: the American Civil Liberties Union was founded in 1920 in reaction against the repression of dissent during World War I. Progress has hardly been steady: Leftists were prosecuted again in the 1950s for advocating or advising overthrow of the government or merely associating with other rhetorical enemies of the state. African Americans were systematically denied the right to vote, among many other rights, until the 1960s; the 2000 presidential election was a reminder of how fragile voting rights remain. The rights revolution that began in the 1920s proceeded sporadically; it did, however, proceed, as the Court began enforcing the Bill of Rights and applying it to exercises of state as well as federal power.
Laws enacted in the 1990s that stripped the courts of their power to review the actions of law enforcement agents and other bureaucrats stalled and in some ways reversed the drive for individual rights; without judicial enforcement, rights are paper thin. Still the legal principles that will help resolve battles over antiterrorism initiatives today are aimed at protecting rights that didn't exist a century ago. Federal judges who are challenging the Bush administration's war on liberty today have twentieth-century jurisprudence on their side.
Optimists reassure us that the Supreme Court today will not sanction repression on the grand scale, as it did sixty years ago when it approved the summary internment of Japanese Americans. I hope they're right. But even if the Court does impose some checks on the president, the judiciary cannot always monitor his exercise of power. The administration has shown its willingness to act unlawfully, in secret. In the best of times, law enforcement agents secretly abuse their powers, as we sometimes learn years later. If we're lucky, years from now we'll be free to learn about all the abuses occurring today. And we'll share some blame for them.
Trust us, the president and attorney general demand, and even some judges comply. In October, the federal appeals court for the Third Circuit upheld the categorical closing of deportation hearings (disagreeing with an earlier ruling by the Sixth Circuit). The court trusted the government to act legally and appropriately, in secret. But a democratic government isn't based on trust. It's based on skepticism—thus the system of checks and balances—and the ability of people to remain informed about the workings of their government. A trusting populace is likely to feel secure in its own ignorance; an ignorant populace is unlikely to remain free.
Copyright 2002 by Wendy Kaminer. All rights reserved.
- Free for All: Defending Liberty in America Today. By Wendy Kaminer. Beacon Press, 2002. (Beacon.org)