Highlights of the USA PATRIOT
Act
National Review, Editorial by
Rich Lowry:
The 9/11 Commission has revealed another
zealot who supports the dreaded USA Patriot
Act, insisting that "everything that's
been done in the Patriot Act has been
helpful." Not a few things. Not even most
things. "Everything." Who is this thoughtless
pawn of John Ashcroft? None other than
former Clinton Attorney General Janet
Reno.
Not generally known for her taste for aggressive
law enforcement, even Reno was chafing
under aspects of the pre-Patriot Act legal
regime. She told the commission of her
frustration about not securing an expansion
of so-called "pen register" authority
so the feds could obtain phone records
of suspected terrorists. "We were not
able to get [it] passed during my tenure,"
she complained, "but that ultimately became
a part of the Patriot Act."
Just another reason to be grateful for
the much-maligned act. If there has been
a hero of the 9/11 Commission hearings,
it isn't Richard Clarke or Condoleezza
Rice so much as the Patriot Act. However
compelling their respective performances,
Clarke and Rice both have partisan detractors.
The new law, in contrast, has been a bipartisan
hit, credited with updating federal surveillance
powers to deal with the terrorist threat
and tearing down "the wall" that hampered
the work of the FBI and CIA by forbidding
cooperation between intelligence and law-enforcement
officials.
President Bush critic Richard Clarke refers
in his book to "the needed reforms of
the Patriot Act." The commission has heard
this message from everyone. As its chairman
Thomas Kean, a Republican, has said, "We
did have witness after witness tell us
that the Patriot Act has been very, very
helpful, and if the Patriot Act, or portions
of it, had been in place before 9/11,
that would have been very helpful."
What the Patriot Act fixed were the effects
of three decades of liberal hostility
to federal law enforcement and intelligence
gathering. Although it is heartwarming
that Reno now recognizes the need for
the act, her Justice Department often
acted as if it were a chapter of the American
Civil Liberties Union. Her deputy, Jamie
Gorelick, currently a deeply conflicted
member of the 9/11 Commission, famously
wrote a 1995 memo augmenting "the wall"
that has become the most unpopular structure
since a certain concrete barrier collapsed
in Berlin in 1989. Reno wanted to avoid
even the appearance of improper cooperation
between intelligence and law enforcement,
lest civil libertarians have an excuse
to howl about police-state tactics.
If hampering the work of counterterrorism
officials prior to 9/11 was a mistake,
perhaps it was understandable given the
sleepy context of the time. What is unforgivable
is opposing the Patriot Act even after
3,000 Americans were killed, partly because
the FBI and CIA were so deeply dysfunctional.
But this was exactly the posture of John
Kerry and almost every other Democratic
presidential candidate last year. They
essentially portrayed the act as a tool
appropriate only for Salem prosecutors
circa 1692.
During the primaries, Kerry blasted it
as a violation of our fundamental rights:
"We have learned from the...Patriot Act
that the last thing we need is John Ashcroft
rewriting the Bill of Rights." A Kerry
spokesman just the other day criticized
Bush for "playing election-year politics
with the Patriot Act." This is rich coming
from the Kerry camp, when their candidate
voted for the act and then viciously turned
against it after seeing Howard Dean get
political traction by trashing it.
Bush's alleged election-year gambit is
calling for the renewal of roughly a dozen
provisions that will expire at the end
of 2005, including those that tore down
"the wall." There has been much debate
about whether the war on terror is really
a war, or just a law-enforcement action.
As it happens, liberals not only oppose
the war paradigm, they criticize the Patriot
Act, the primary tool of law enforcement
in the fight against terror too. They
need to tune in to the work of the 9/11
Commission.
The Baltimore Sun, Editorial
Column by Paul Rosenzweig
Falsehood, according to Mark Twain's
famous dictum, gets halfway around the
world before the truth even gets its shoes
on. Time and again, outlandish stories
seem to grow legs and find wide distribution
before the truth can catch up.
A good example is the USA Patriot Act.
It's so broadly demonized now, you'd never
know it passed with overwhelming support
in the days immediately after Sept. 11,
2001....
But the truth is catching up. And the first
truth is that the Patriot Act was absolutely
vital to protect America's security.
Prior to 9/11, our law enforcement and
intelligence agencies were limited by
law in what information they could share
with each other. The Patriot Act tore
down that wall - and officials of both
political stripes have praised the act's
value.
As former Attorney General Janet Reno told
the 9/11 commission, "Generally everything
that's been done in the Patriot Act has
been helpful, I think, while at the same
time maintaining the balance with respect
to civil liberties."
And as Attorney General John Ashcroft's
recent report to Congress makes clear,
this change in the law has real, practical
consequences....
Yet, remarkably, some of these vital provisions
allowing the exchange of information between
law enforcement and intelligence agencies
will expire at the end of next year. So
here's a second truth: If Congress does
nothing, then parts of the law will return
to where they were on the day before 9/11
- to a time when our government couldn't,
by law, connect all the dots. Nobody wants
a return to those days, but that is where
we are headed if Congress does not set
aside its partisan debates.
But what of the abuses, you ask? Time for
a third truth: There is no abuse of the
Patriot Act. None. The Justice Department's
inspector general (who is required by
the Patriot Act to examine the use of
the act and report any abuse twice a year)
has reported that there have been no instances
in which the Patriot Act has been invoked
to infringe on civil rights or civil liberties....
Government's obligation is a dual one:
to provide security against violence and
to preserve civil liberty. This is not
a zero-sum game. We can achieve both goals
if we empower government to do sensible
things while exercising oversight to prevent
any real abuses of authority. The Patriot
Act, with its reasonable extension of
authority to allow the government to act
effectively with appropriate oversight
rules, meets this goal.
And the truth eventually catches up to
the fiction.
The Fort-Worth Star-Telegram,
Editorial Column by Viet Dinh
Delayed notice of search warrants:
A judge who issues a search warrant has
always had the authority to delay notice
of its execution. So firmly established
is this authority that the Supreme Court
has labeled a contrary argument as frivolous.
In the Patriot Act, Congress adopted a
uniform standard of reasonable cause for
delays authorized for a reasonable period.
A judge must still approve the delayed
notice and only for specified reasons,
such as to save lives or preserve evidence.
The uniform 'reasonable cause' standard
is more restrictive than the prior standard,
which allowed delay for any 'good reason'.
Business records:
Grand juries for years have issued subpoenas
for business records in criminal inquiries.
The Patriot Act gives courts in national
security investigations the same power
to issue similar orders to businesses,
from chemical makers to explosives dealers.
Like grand jury subpoenas, these judicial
orders could issue to libraries, but the
act does not single them out. The FBI
can use this authority only to catch foreign
terrorists and spies, and not to investigate
ordinary crimes or even domestic terrorism.
A judge must issue and supervise the orders,
while grand jury subpoenas are routinely
issued by the court clerk. Every six months,
Congress gets full information on their
use.
The House Judiciary Committee has stated
that its review 'has not given rise to
any concern that the authority is being
misused or abused.' This authority has
not been used once since its passage,
partly because ordinary grand jury subpoenas
are more easily obtainable. The authority
cannot be used to spy on the reading habits
of ordinary Americans.
Secret searches:
The government can and should investigate
terrorists. In cases in which public disclosure
would threaten national security, investigators
can take steps to prevent it, such as
asking a court for a confidentiality order.
Nothing in the Patriot Act affects these
common-sense procedures.
The New York Post, Opinion
Column by Rich Lowry:
"The challenge to critics
should be this: Name one civil liberty
that has been violated under the Patriot
Act. They can't, which is why they instead
rely on hyperbole in an increasingly successful
effort to make the Patriot Act a dirty
phrase. Many of the new powers under the
act -- such as 'the roving wiretap,' which
allows the government to continue monitoring
a target who switches phones -- aren't
really new. They give counterterrorism
investigators the same powers investigators
already have in mob cases. Opponents of
the act must explain why Mohammad Atta
should have greater freedom from surveillance
than Tony Soprano. . . .
Two particular provisions of the act rile
critics. The Republican-controlled House
-- demonstrating that uninformed hysteria
is bipartisan -- recently voted to ban
funding for Section 213 of the law. Under
Section 213, law enforcement can delay
notifying a target that his property has
been searched. These delayed-notification
searches require a court order, and they
can be used only when immediate notification
would jeopardize an investigation. Such
searches already existed prior to the
passage of the Patriot Act, and the Supreme
Court has upheld their constitutionality.
. . .
Another target of critics is Section 215.
It allows investigators to seize documents
-- including, theoretically, library records
-- from a third party if they bear on
a terrorism investigation. . . . this
is another power that already existed.
Grand juries have always been able to
subpoena records if they are relevant
to a criminal investigation. The Patriot
Act extends this power to counterterrorism
investigators and requires a court order
for it to be used.
Critics want to eviscerate these sections
of the act, and more. They should bundle
their proposals together and call them
'The Zacarias Moussaoui Protection Act,'
after 'the 20th hijacker,' whose computer
wasn't searched prior to Sept. 11 due
to civil-liberties concerns. We have already
forgotten the importance of aggressive,
pre-emptive law enforcement." (Rich
Lowry, "Over the Top Over Patriot
Act," The New York Post, August
27, 2003)
The Washington Post, Heather
Mac Donald Editorial:
"According to the ACLU, this power
allows the FBI to 'spy on a person because
they don't like the books she reads, or
because . . . she wrote a letter to the
editor that criticized government policy.'
The charge is baseless. To begin with,
it ignores the fact that the FBI can do
nothing under Section 215 without the
approval of a federal court. Let's say
the FBI has received a tip that al Qaeda
sympathizers have taken scuba lessons
in preparation for an attack on Navy destroyers
off the California coast. Under 215, the
bureau could seek a court order for local
dive school records to see if any terror
suspects had recently enrolled. The key
phrase here is 'seek a court order.' It
is inconceivable that the court that oversees
espionage and counterterrorism investigations
will approve a records request made because
the FBI doesn't "like the books"
someone reads, or 'because she wrote a
letter to the editor that criticized government
policy,' as the ACLU claims." (Heather
Mac Donald, "In Defense of the Patriot
Act," The Washington Post,
August 24, 2003)
The Winchester Star (Virginia):
"Liberals are doing their darnedest
to say that Attorney General John Ashcroft's
month-long nationwide tour in defense
of the Patriot Act is a sure sign that
public approval of the anti-terrorism
legislation is crumbling. We say it's
about time Mr. Ashcroft took to the offensive
to combat these odious attacks on a measure
intended not to run roughshod over civil
liberties but to provide our protectors
better tools to do their jobs in what
figures to be a protracted war on terrorism.
. . . Unless people are engaged in terrorist
activities or have something to hide in
that respect, the Patriot Act will never
affect their lives. It is meant, foremost
and primarily, to help those agencies
responsible for homeland security to 'connect
the dots' in this ongoing struggle to
bring the perpetrators of terror to justice.
. . . This nation remains at war against
shadowy foes. If we are to ultimately
emerge triumphant, we must give the government
the tools necessary to provide for the
common defense, its foremost duty. The
Patriot Act is one of those tools -- and
Mr. Ashcroft is to be applauded for defending
it." ("To 'Connect the Dots,'
The Winchester Star, August 22,
2003)
The Des Moines Register's David
Yepsen:
"Civil libertarians are fretting
mightily over the [Patriot Act], which
they fear will erode freedoms. They are
mounting strong attacks upon it. But there's
no need for hyperventilation, although
the issue is one way for civil-liberties
groups to scare donors into increasing
their contribution levels. Most Americans
support the act because they understand
that a nation must take special measures
to survive in wartime.
Had the act been in place prior to Sept.
11, the tragic events of that day might
have been prevented. By bending over backward
to protect civil liberties, the nation's
law-enforcement agencies were discouraged
and impaired from doing good police work,
like looking in laptops of terrorist suspects.
This debate is expected. It occurs in every
war. There is conflict between the need
to protect civil liberties and the need
to protect national security. Polls show
most of us are opting to be safe rather
than give a terrorist another opening.
Ashcroft has one powerful argument to
make in defense of the act: So far, it's
worked. We haven't had a major act of
terrorism committed on U.S. soil since
it was enacted. The day we do will be
the day the provisions of the act are
strengthened, not weakened.
Civil libertarians are well-meaning folks
and we must always have them around to
tweak our conscience. But they tend to
see bogeymen, or black helicopters, where
there are none. Yes, civil-liberties violations
are possible under the act. They're just
not probable. This nation isn't locking
up whole groups of people, as we did in
World War II with the Japanese. We haven't
approached the violations of civil liberties
Abraham Lincoln committed during the Civil
War. Any abuses of police power that have
occurred under the act are anecdotal and
are not part of a pattern. We are arresting
and prosecuting terrorists, however. They
are a greater threat to our society right
now than the inadvertent violation of
some terror suspect's legal rights."
(David Yepsen, "Yepsen: Ashcroft's
Defense Is Simple: Patriot Act Works,"
Des Moines Register, August 21,
2003) Reprinted by permission
The Arizona Republic:
"Prior to Sept. 11, the United
States simply was not prepared to battle
such a pernicious foe. The efforts of
the president and his chief lawman in
promoting Congress' passage in October
of the USA PATRIOT Act are designed not
to encumber liberty, but to protect it.
Had they taken no action, had they chosen
simply to leave in place roadblocks to
pursuing this enemy, they would have abrogated
a founding principle of the federal government,
which is to assure the safety of American
citizens." (Opinion, "War Calls for Civil
Sacrifices, Extraordinary Measures for
Extraordinary Times," The Arizona Republic,
December 6, 2001)
The Daily Record (Maryland):
"Chief Justice Robert Jackson
famously said, 'The Constitution is not
a suicide pact.' Failing to take strong
measures to defend our Nation against
future attacks would amount to suicide.
The 'USA Patriot Act' is an important
part of the Nation's efforts to fight
back to defend freedom and liberty." (Editorial,
"9/11: Winning the War," The Daily
Record, November 19, 2001)
The Lancaster New Era (Pennsylvania):
"This legislation might have
been called the 'life or death' bill.
It is the legal buttress of the nation's
war on terrorism and defense against future
attacks. . . . The USA Patriot Act gives
the attorney general the tools he needs."
(Commentary, "Anti-terrorism Legislation
Gives Nation New Protection," The Lancaster
New Era, October 29, 2001)
The Columbus Dispatch (Ohio):
"Civil libertarians aghast at the
intrusive provisions of the USA Patriot
Act may find some comfort in the Justice
Department's 60-page report to the House
Judiciary Committee. . . . [The] numbers
hardly suggest the mass usurpation of
individual rights. And the willingness
of the Justice Department to submit to
congressional oversight in an open manner
is reassuring." (Editorial, "Justice Treads
Lightly; Report to House committee suggests
that USA Patriot Act hasn't shredded Bill
of Rights," The Columbus Dispatch,
May 28, 2003)
National Review's Ramesh
Ponnuru:
"[M]ost of the concerns about
Patriot are misguided or based on premises
that are just plain wrong.
Roving wiretaps. Thanks to the
Patriot Act, terrorism investigations
can use roving wiretaps. Instead of having
to get new judicial authorization for
each phone number tapped, investigators
can tap any phone their target uses. This
is important when fighting terrorists
whose MO includes frequently switching
hotel rooms and cell phones. It's a commonsense
measure. It's also nothing new: Congress
authorized roving wiretaps in ordinary
criminal cases back in 1986. It's hard
to see Patriot as a blow to civil liberties
on this score.
Internet surveillance. Libertarians
have been particularly exercised about
Patriot's green light for 'spying on the
Web browsers of people who are not even
criminal suspects' -- to quote Reason
editor Nick Gillespie. This is a misunderstanding
of Patriot, as George Washington University
law professor Orin Kerr has demonstrated
in a law-review article. Before Patriot,
it wasn't clear that any statute limited
the government's, or even a private party's,
ability to obtain basic information about
electronic communications (e.g., to whom
you're sending e-mails). Patriot required
a court order to get that information,
and made it a federal crime to get it
without one.
Kerr believes that the bar for getting
a court order should be raised. But he
notes that Patriot made the privacy protections
for the Internet as strong as those for
phone calls and stronger than for mail.
Patriot's Internet provisions, he concludes,
'updated the surveillance laws without
substantially shifting the balance between
privacy and security.'
James Bovard traffics in another Patriot
myth in a recent cover story for The American
Conservative: that it 'empowers federal
agents to cannibalize Americans' e-mail
with Carnivore wiretaps.' Carnivore is
an Internet surveillance tool designed
by the FBI. Don't be scared by the name.
The FBI's previous tool was dubbed 'Omnivore,'
and this new one was so named because
it would be more selective in acquiring
information, getting only what was covered
by a court order and leaving other information
private. But even if Carnivore is a menace,
it's not the fault of Patriot. As Kerr
points out, 'The only provisions of the
Patriot Act that directly address Carnivore
are pro-privacy provisions that actually
restrict the use of Carnivore.'
Hacking. Also in Reason, Jesse
Walker writes that Patriot 'expands the
definition of terrorist to include such
non-lethal acts as computer hacking.'
That's misleading. Pre-Patriot, an al-Qaeda
member who hacked the electric company's
computers to take out the grid could not
be judged guilty of terrorism, even if
he would be so judged if he accomplished
the same result with a bomb. Hacking per
se isn't terrorism, and Patriot doesn't
treat it as such.
Sneak and peek. The ACLU is running
ads that say that Patriot lets the government
'secretly enter your home while you're
away . . . rifle through your personal
belongings . . . download your computer
files . . . and seize any items at will.'
Worst of all, 'you may never know what
the government has done.' Reality check:
You will be notified if a sneak-and-peek
search has been done, just after the fact
-- usually within a few days. The feds
had the authority to conduct these searches
before Patriot. A federal judge has to
authorize such a search warrant, and the
warrant has to specify what's to be seized.
Library records. Bovard is appalled
that Patriot allows 'federal agents to
commandeer library records,' and the American
Library Association shares his sentiment.
Patriot doesn't mention libraries specifically,
but does authorize terrorism investigators
to collect tangible records generally.
Law enforcement has, however, traditionally
been able to obtain library records with
a subpoena. Prof. Kerr suggests that because
of Patriot, the privacy of library records
may be better protected in terrorism investigations
than it is in ordinary criminal ones."
(Ramesh Ponnuru, "1984 in 2003?: Fears
About the Patriot Act Are Misguided,"
National Review, June 2, 2003)
The Asheville Citizen-Times
(North Carolina):
"All in all, the bill is loaded
with common-sense measures. . . . Several
measures to combat [abuse] are included
in the bill, dubbed the Patriot Act, including
a four-year limit on the wiretapping and
electronic surveillance provisions. Given
the threat this nation faces, that is
a fair compromise. . . . Ironically, in
1996 Congress had an opportunity to pass
similar legislation but key provisions
streamlining the deportation of terrorists
and allowing use of wiretap evidence obtained
with a warrant were stripped in the House.
. . . It's important we now do something,
and that we get it right. . . . For we
have seen the results of not acting."
(Editorial, "Nation Makes a Risky Move;
Not Acting Would've Been Riskier,"
The Asheville Citizen-Times, October
28, 2001)
National Review's David
Frum:
"Ever since September 11, we have
been hearing warnings of the imminent
collapse of civil liberties in the United
States. These warnings usually offer a
lot more in the way of heavy-breathing
than legal specifics--and no wonder. When
people learn the actual content of a law
like the USA Patriot Act, the most frequent
reaction is astonishment that the main
elements of the bill were not law already."
(David Frum, "David Frum's Diary: The
Hysteria of the Civil Libertarians," National
Review, April 7, 2003)
City Journal Author Heather
Mac Donald:
[This article, "Straight Talk on Homeland
Security," ran in the Summer 2003 edition
of City Journal]
"The backlash against the Bush administration's
War on Terror began on 9/11 and has not
let up since. Left- and right-wing advocacy
groups have likened the Bush administration
to fascists, murderers, apartheid ideologues,
and usurpers of basic liberties. Over
120 cities and towns have declared themselves
'civil liberties safe zones;' and the
press has amplified at top volume a recent
report by the Justice Department's inspector
general denouncing the government's handling
of suspects after 9/11. Even the nation's
librarians are shredding documents to
safeguard their patrons' privacy and foil
government investigations.
The advocates' rhetoric is both false
and dangerous. Lost in the blizzard of
propaganda is any consciousness that 9/11
was an act of war against the U.S. by
foreign enemies concealed within the nation's
borders. If the media and political elites
keep telling the public that the campaign
against those terrorist enemies is just
a racist power grab, the most essential
weapon against terror cells--intelligence
from ordinary civilians--will be jeopardized.
A drumbeat of ACLU propaganda could discourage
a tip that might be vital in exposing
an al-Qaida plot.
It is crucial, therefore, to demolish
the extravagant lies about the anti-terror
initiatives. Close scrutiny of the charges
and the reality that they misrepresent
shows that civil liberties are fully intact.
The majority of legal changes after September
11 simply brought the law into the twenty-first
century. In those cases where the government
has expanded its powers--as is inevitable
during a war--important judicial and statutory
safeguards protect the rights of law-abiding
citizens. And in the one hard case where
a citizen's rights appear to have been
curtailed--the detention of a suspected
American al-Qaida operative without access
to an attorney--that detention is fully
justified under the laws of war.
The anti-War on Terror worldview found
full expression only hours after the World
Trade Center fell, in a remarkable e-mail
that spread like wildfire over the Internet
that very day. Sent out by Harvard Law
School research fellow John Perry Barlow,
founder of the cyber-libertarian Electronic
Freedom Foundation, the message read:
"Control freaks will dine on this
day for the rest of our lives. Within
a few hours, we will see beginning the
most vigorous efforts to end what remains
of freedom in America. . . . I beg you
to begin NOW to do whatever you can .
. . to prevent the spasm of control mania
from destroying the dreams that far more
have died for over the last two hundred
twenty-five years than died this morning.
Don't let the terrorists or (their natural
allies) the fascists win. Remember that
the goal of terrorism is to create increasingly
paralytic totalitarianism in the government
it attacks. Don't give them the satisfaction.
. . . And, please, let us try to forgive
those who have committed these appalling
crimes. If we hate them, we will become
them."
Barlow, a former lyricist for the Grateful
Dead, epitomizes the rise of the sixties
counterculture into today's opinion elite,
for whom no foreign enemy could ever pose
as great a threat to freedom as the U.S.
For Barlow, the problem isn't the obvious
evil of Islamic terrorism but the imputed
evil of the American government--an inversion
that would characterize the next two years
of anti-administration jeremiads. In this
spirit, critics would measure each legal
change not against the threat it responded
to, but in a vacuum. Their verdict: 'increasingly
paralytic totalitarianism.'
Right-wing libertarians soon joined forces
with the Left. A few months after the
Twin Towers fell, the Rutherford Institute,
a Christian think tank concerned with
religious liberty, added the final piece
to the anti-administration argument: the
9/11 attacks were not war but, at most,
a crime. Rutherford president John Whitehead
denounced the Bush administration's characterization
of the terror strikes as 'acts of war
by foreign aggressors,' without however
offering a single argument to support
his view. Since that characterization
has produced, in Whitehead's view, growing
'police statism' that is destroying Americans'
freedom, the characterization must be
false.
In fact, of course, the 9/11 bombings
were classic decapitation strikes, designed
to take out America's political and financial
leadership. Had a state carried them out,
no one could possibly deny that they were
acts of war, as John Yoo and James Ho
point out in a forthcoming Virginia Journal
of International Law article. The aim
of the 19 foreign terrorists and their
backers was not criminal but ideological:
to revenge U.S. policies in the Middle
East with mass destruction.
Recognizing that the World Trade Center
and Pentagon attacks were acts of war
entails certain consequences. First, the
campaign against al-Qaida and other Islamic
terror organizations is really war, not
a metaphor, like the 'war on drugs.' Second,
it is a war unlike any the U.S. has ever
fought. The enemy, mostly but not exclusively
foreign, is hidden on American soil in
the civilian population, with the intention
of slaughtering as many innocent noncombatants
as possible. The use of military force
abroad, while necessary, is by no means
sufficient: domestic counterterrorism
efforts by the FBI and other domestic
law enforcement agencies are at least
as essential to defeating the enemy.
When these agencies are operating against
Islamic terrorists, they are operating
in an unprecedented war mode--but most
of the rules that govern them were designed
for crime fighting. The tension between
the Justice Department's and FBI's traditional
roles as law enforcement agencies and
their new roles as terror warriors lies
at the heart of the battle over the Bush
administration's post-9/11 homeland-security
policies: critics refuse to recognize
the reality of the war and thus won't
accept the need for expanded powers to
prosecute it.
Most of the changes in the law that the
Justice Department sought after 9/11 concern
the department's ability to gather intelligence
on terror strikes before they happen--its
key responsibility in the terror war.
Yet the libertarian lobby will not allow
the department to budge from the crime
paradigm, refusing to admit that surveillance
and evidence-gathering rules designed
to protect the rights of suspected car
thieves and bank robbers may need modification
when the goal is preventing a suitcase
bomb from taking out JFK. But of course
the libertarians rarely acknowledge that
suitcase bombs and the like are central
to this debate.
Ironically, none of the changes instituted
by Attorney General Ashcroft comes anywhere
near what the government could ask for
in wartime, such as the suspension of
habeas corpus, as Lincoln ordered during
the Civil War. The changes preserve intact
the entire criminal procedural framework
governing normal FBI and police actions,
and merely tinker around the edges. But
the left and right civil libertarians
are having none of it.
The charges they have brought against
the War on Terror have been so numerous,
impugning every single administration
action since 9/11, that it would take
hundreds of pages to refute them all.
But the following analysis of only the
main charges will amply illustrate the
range of duplicitous strategies that the
anti-government forces deploy.
Strategy #1: Hide the Judge. Jan
O'Rourke, a librarian in Bucks County,
Pennsylvania, is preparing for the inevitable
post-9/11 assault: She is destroying all
records of her patrons' book and Internet
use and is advising other Bucks County
libraries to do the same. The object of
her fear? The U.S. government. O'Rourke
is convinced that federal spooks will
soon knock on her door to spy on her law-abiding
clients' reading habits. So, like thousands
of librarians across the country, she
is making sure that when that knock comes,
she will have nothing to show. 'If we
don't have the information, then they
can't get it,' she explains.
O'Rourke is suffering from Patriot Act
hysteria, a malady approaching epidemic
levels. The USA-PATRIOT Act, which President
Bush signed in October 2001, is a complex
measure to boost the federal government's
ability to detect and prevent terrorism.
Its most important provision relaxed a
judge-made rule that, especially after
Clinton administration strengthening,
had prevented intelligence and law enforcement
officials from sharing information and
collaborating on terror investigations
(see 'Why the FBI Didn't Stop 9/11,' Autumn
2002). But the act made many other needed
changes too: updating surveillance law
to take into account new communications
technology, for instance, enhancing the
Treasury Department's ability to disrupt
terrorist financing networks, and modestly
increasing the attorney general's power
to detain and deport suspected terrorist
aliens.
From the moment the administration proposed
the legislation, defenders of the status
quo started ringing the tyranny alarm.
When the law passed, the Electronic Privacy
Information Center depicted a tombstone
on its website, captioned: 'The Fourth
Amendment: 1789-2001.' The Washington
Post denounced the bill as 'panicky.'
And the ever touchy American Library Association
decided that a particular provision of
the Patriot Act--section 215--was a 'present
danger to the constitutional rights and
privacy of library users,' though the
section says not a word about libraries.
The furor over section 215 is a case study
in Patriot Act fear-mongering. Section
215 allows the FBI to seek business records
in the hands of third parties--the enrollment
application of a Saudi national in an
American flight school, say--while investigating
terrorism. The section broadens the categories
of institutions whose records and other
'tangible items' the government may seek
in espionage and terror cases, on the
post-9/11 recognition that lawmakers cannot
anticipate what sorts of organizations
terrorists may exploit. In the past, it
may have been enough to get hotel bills
or storage-locker contracts (two of the
four categories of records covered in
the narrower law that section 215 replaced)
to trace the steps of a Soviet spy; today,
however, gumshoes may find they need receipts
from scuba-diving schools or farm-supply
stores to piece together a plot to blow
up the Golden Gate Bridge. Section 215
removed the requirement that the records
must concern an 'agent of a foreign power'
(generally, a spy or terrorist), since,
again, the scope of an anti-terror investigation
is hard to predict in advance.
From this tiny acorn, Bush administration
foes have conjured forth a mighty assault
on the First Amendment. The ACLU warns
that with section 215, 'the FBI could
spy on a person because they don't like
the books she reads, or because they don't
like the websites she visits. They could
spy on her because she wrote a letter
to the editor that criticized government
policy.' Stanford Law School dean Kathleen
Sullivan calls section 215 'threatening.'
And librarians, certain that the section
is all about them, are scaring library
users with signs warning that the government
may spy on their reading habits.
These charges are nonsense. Critics of
section 215 deliberately ignore the fact
that any request for items under the section
requires judicial approval. An FBI agent
cannot simply walk into a flight school
or library and demand records. The bureau
must first convince the court that oversees
anti-terror investigations (the Foreign
Intelligence Surveillance Act, or FISA,
court) that the documents are relevant
to protecting 'against international terrorism
or clandestine intelligence activities.'
The chance that the FISA court will approve
a 215 order because the FBI 'doesn't like
the books [a person] reads . . . or because
she wrote a letter to the editor that
criticized government policy' is zero.
If the bureau can show that someone using
the Bucks County library computers to
surf the web and send e-mails has traveled
to Pakistan and was seen with other terror
suspects in Virginia, on the other hand,
then the court may well grant an order
to get the library's Internet logs.
Moreover, before the FBI can even approach
the FISA court with any kind of request,
agents must have gone through multiple
levels of bureaucratic review just to
open an anti-terror investigation. And
to investigate a U.S. citizen (rather
than an alien) under FISA, the FBI must
show that he is knowingly engaged in terrorism
or espionage.
Ignoring the Patriot Act's strict judicial
review requirements is the most common
strategy of the act's critics. Time and
again, the Cassandras will hold up a section
from the bill as an example of rampaging
executive power--without ever mentioning
that the power in question is overseen
by federal judges who will allow its use
only if the FBI can prove its relevance
to a bona fide terror (or sometimes criminal)
investigation. By contrast, in the few
cases where a law enforcement power does
not require judicial review, the jackboots-are-coming
brigade screams for judges as the only
trustworthy check on executive tyranny.
Strategy #2: Invent New Rights.
A running theme of the campaign against
section 215 and many other Patriot Act
provisions is that they violate the Fourth
Amendment right to privacy. But there
is no Fourth Amendment privacy right in
records or other items disclosed to third
parties. A credit-card user, for example,
reveals his purchases to the seller and
to the credit-card company. He therefore
has no privacy expectations in the record
of those purchases that the Fourth Amendment
would protect. As a result, the government,
whether in a criminal case or a terror
investigation, may seek his credit-card
receipts without a traditional Fourth
Amendment showing to a court that there
is 'probable cause' to believe that a
crime has been or is about to be committed.
Instead, terror investigators must convince
the FISA court that the receipts are 'relevant.'
Despite librarians' fervent belief to
the contrary, this analysis applies equally
to library patrons' book borrowing or
Internet use. The government may obtain
those records without violating anyone's
Fourth Amendment rights, because the patron
has already revealed his borrowing and
web browsing to library staff, other readers
(in the days of handwritten book checkout
cards), and Internet service providers.
Tombstones declaring the death of the
Fourth Amendment contain no truth whatsoever.
What's different in the section 215 provision
is that libraries or other organizations
can't challenge the FISA court's order
and can't inform the target of the investigation,
as they can in ordinary criminal proceedings.
But that difference is crucial for the
Justice Department's war-making function.
The department wants to know if an al-Qaida
suspect has consulted maps of the Croton
reservoir and researched the toxic capacities
of cyanide in the New York Public Library
not in order to win a conviction for poisoning
New York's water supply but to preempt
the plot before it happens. The battleground
is not the courtroom but the world beyond,
where speed and secrecy can mean life
or death.
Strategy #3: Demand Antiquated Laws.
The librarians' crusade against section
215 has drawn wide media attention and
triggered an ongoing congressional battle,
led by Vermont socialist Bernie Sanders,
to pass a law purporting to protect the
'Freedom to Read.' But the publicity that
administration-hostile librarians were
able to stir up pales in comparison to
the clout of the Internet privacy lobby.
The day the Patriot Act became law, the
Center for Democracy and Technology sent
around a warning that 'privacy standards'
had been 'gutt[ed].' The Electronic Freedom
Foundation declared that the 'civil liberties
of ordinary Americans have taken a tremendous
blow.' Jeffrey Rosen of The New Republic
claimed that the law gave the government
'essentially unlimited authority' to surveil
Americans. The ACLU asserted that the
FBI had suddenly gained 'wide powers of
phone and internet surveillance.' And
the Washington Post editorialized that
the act made it 'easier' to wiretap by
'lowering the standard of judicial review.'"
The target of this ire? A section that
merely updates existing law to modern
technology. The government has long had
the power to collect the numbers dialed
from, or the incoming numbers to, a person's
telephone by showing a court that the
information is 'relevant to an ongoing
criminal investigation.' Just as in section
215 of the Patriot Act, this legal standard
is lower than traditional Fourth Amendment
'probable cause,' because the phone user
has already forfeited any constitutional
privacy rights he may have in his phone
number or the number he calls by revealing
them to the phone company.
A 1986 federal law tried to extend the
procedures for collecting phone-number
information to electronic communications,
but it was so poorly drafted that its
application to e-mail remained unclear.
Section 216 of the Patriot Act resolves
the ambiguity by making clear that the
rules for obtaining phone numbers apply
to incoming and outgoing e-mail addresses
as well. The government can obtain e-mail
headers--but not content--by showing a
court that the information is 'relevant
to an ongoing criminal investigation.'
Contrary to cyber-libertarian howls, this
is not a vast new power to spy but merely
the logical extension of an existing power
to a new form of communication. Nothing
else has changed: the standard for obtaining
information about the source or destination
of a communication is the same as always.
Section 216 made one other change to communications
surveillance law. When a court issues
an order allowing the collection of phone
numbers or e-mail headers, that order
now applies nationally. Before, if a phone
call was transmitted by a chain of phone
companies headquartered in different states,
investigators needed approval from a court
in each of those states to track it. This
time-consuming procedure could not be
more dangerous in the age of terror. As
Attorney General John Ashcroft testified
in September 2001, the 'ability of law
enforcement officers to trace communications
into different jurisdictions without obtaining
an additional court order can be the difference
between life and death for American citizens.'
Yet the ACLU has complained that issuing
national warrants for phone and e-mail
routing information marginalizes the judiciary
and gives law enforcement unchecked power
to search citizens.
The furor over this section of the Patriot
Act employs the same deceptions as the
furor over section 215 (the business records
provision). In both cases, Patriot Act
bashers ignore the fact that a court must
approve the government's access to information.
Despite the Washington Post's assertion
to the contrary, section 216 does not
lower any standards of judicial review.
Both the anti-216 and anti-215 campaigns
fabricate privacy rights where none exists.
And neither of these anti-government campaigns
lets one iota of the reality of terrorism
intrude into its analyses of fictional
rights violations--the reality that communications
technology is essential to an enemy that
has no geographical locus, and whose combatants
have mastered the Internet and every form
of modern communications, along with methods
to defeat surveillance, such as using
and discarding multiple cell phones and
communicating from Internet cafes. The
anti-Patriot Act forces would keep anti-terror
law enforcement in the world of Ma Bell
and rotary phones, even as America's would-be
destroyers use America's most sophisticated
technology against it.
Strategy #4: Conceal Legal Precedent.
Section 213 of the Patriot Act allows
the FBI (with court approval) to delay
notifying a property owner that his property
will be or has been searched, if notice
would have an 'adverse result': if he
might flee the country, for example, or
destroy documents or intimidate witnesses
before agents can acquire sufficient evidence
to arrest him. In such cases, the court
that issues the search warrant may grant
a delay of notice for a 'reasonable period'
of time.
The advocates dubbed Section 213 the 'sneak-and-peak'
section and have portrayed it as one of
the most outrageous new powers seized
by Attorney General John Ashcroft. The
ACLU's fund-raising pitches warn: 'Now,
the government can secretly enter your
home while you're away . . . rifle through
your personal belongings . . . download
your computer files . . . and seize any
items at will. . . . And, because of the
Patriot Act, you may never know
what the government has done.' Richard
Leone, president of the Century Foundation
and editor of The War on Our Freedoms:
Civil Liberties in an Age of Terrorism,
cites the fact that the Patriot Act 'allows
the government to conduct secret searches
without notification' to support his hyperbolic
claim that the act is 'arguably the most
far-reaching and invasive legislation
passed since the espionage act of 1917
and the sedition act of 1918."
These critics pretend not to know that,
long before anyone imagined such a thing
as Islamic terrorism, federal judges have
been granting 'sneak-and-peak' warrants
in criminal cases under identical standards
to those of section 213. The possibility
of seeking delayed notice is a long-standing
law enforcement prerogative, sanctioned
by numerous courts. Section 213 merely
codified the case law to make the process
uniform across different jurisdictions.
Portraying section 213 as a new power
is simple falsehood, and portraying it
as an excessive and unnecessary power
is extraordinarily ignorant. Delayed notice
under life-threatening conditions is not
just reasonable but absolutely imperative.
Strategy #5: Keep the FBI off the Web.
In May 2002, Attorney General Ashcroft
announced that FBI agents would for the
first time be allowed to surf the web,
just like hundreds of millions of people
across the globe. Previously, the Internet
was strictly off-limits to federal law
enforcement, unless agents had already
developed evidence that a crime was under
way. In other words, although a 12-year-old
could sit in on a jihadi chat room where
members were praising Usama bin Ladin,
or visit sites teaching bombmaking, or
track down the links for the production
of anthrax--all information essential
to mapping out the world of Islamic terrorists
or finding out how much terrorists might
know--intelligence officials couldn't
inspect those same public sites until
they had already discovered a terror plot.
But for an FBI agent in Arizona to wait
for specific information about a conspiracy
before researching his local biochem lab
to see if it might have any connection
to the Washington anthrax attacks, or
might be a target for sabotage, is not
the best strategy for fighting terrorism.
But Ashcroft's critics say the bureau
should wait. According to the Electronic
Privacy Information Center, for instance,
the new guidelines 'threaten Fourth Amendment
rights' because they permit the FBI to
'engage in prospective searches without
possessing any evidence of suspicious
behavior.' But there are no Fourth Amendment
rights in the web. Far from expecting
privacy on a website, its designers hope
for the greatest possible exposure to
all comers. The Internet is more public
even than a newspaper, since it is free
and unbound by geography; it is the most
exhibitionistic communication medium yet
designed. To require the FBI to be the
one entity on earth that may not do general
web searches, as the civil libertarians
have demanded, makes no sense.
In fact, the new guidelines are unduly
narrow. They prohibit searches by an individual's
name--Usama bin Ladin, say--unless agents
have cause to suspect him of involvement
in a terror plot. But since millions of
web users may conduct searches of Usama
bin Ladin's name or of any other individual
without violating anyone's privacy rights,
it is hard to discern a basis for barring
the government from also obtaining that
information in preliminary criminal or
terror investigations. Law enforcement
agencies need to survey as much information
as possible about Islamic terrorism before,
not after, attacks happen, so that they
can recognize an early warning sign or
pattern in what an uninformed observer
may see as an innocuous set of events.
Opening the web to the FBI, common sense
for any criminal investigation, is particularly
essential in fighting Islamic terrorism,
because the web is the most powerful means
of spreading jihad. Rohan Gunaratna, an
al-Qaida expert at Scotland's Saint Andrews
University, argues that unless the authorities
shut down jihadist sites, 'we will not
be able to end terrorism.' But even if
the U.S. can't shut down web pages celebrating
mass destruction in the name of holy war,
it should at least be able to visit them
to learn what's out there.
The May guidelines also permit agents
to attend public meetings for the first
time since 1976 in order to 'detect or
prevent terrorist activities.' Let's say
a Moroccan imam at a Brooklyn mosque regularly
preaches vengeance against America for
its support of Israel. The imam was banished
from Morocco for his agitation against
the secular government. Visitors from
Saudi Arabia known to associate with radical
fundamentalists regularly visit.
Under previous guidelines, the FBI could
not attend public worship at the mosque
to learn more about the imam's activities
unless it had actual evidence that he
was planning to release sarin in the subways,
say. But most of the preparations leading
up to a terror attack--such as casing
transportation systems, attending crop-dusting
school, or buying fertilizer--are legal.
Only intelligence gathering and analysis
can link them to terrorist intent. To
require evidence before permitting the
intelligence gathering that would produce
it is a suicidal Catch-22.
Yet the civil libertarian lobby would
keep the FBI in the dark about public
events until the last minute. The Electronic
Privacy Information Center brands the
public-meeting rule a 'serious threat
to the right of individuals to speak and
assemble freely without the specter of
government monitoring.' But the First
Amendment guarantees free speech and assembly,
not freedom from government attendance
at public meetings. Even so, the new guidelines
narrow the government's power anyway,
by allowing agents to participate in public
meetings only for a terror investigation,
not for criminal investigations.
Strategy #6: Exploit Hindsight.
Early this June, anti-War on Terror advocates
and journalists pulled out all the stops
to publicize a report by the Justice Department's
inspector general criticizing the department's
detention of illegal immigrants suspected
of terrorist ties. Headlines blared: DETAINEES
ABUSED. CIVIL RIGHTS OF POST-SEPT. 11
DETAINEES VIOLATED, REPORT FINDS (Washington
Post); U.S. FINDS ABUSES OF 9/11 DETAINEES;
JUSTICE DEPT. INQUIRY REVEALS MANY VIOLATIONS
OF IMMIGRANTS' RIGHTS (Los Angeles Times);
THE ABUSIVE DETENTIONS OF SEPT. 11 (New
York Times editorial). Advocacy groups
declared full vindication of their crusade
against the Bush administration.
These headlines exaggerated the report
only modestly. To be sure, Inspector General
Glenn Fine did not declare any rights
violations in the Justice Department's
policies or practices, but he did decry
'significant problems in the way the 9/11
detainees were treated.' He charged that
the investigation and clearance of terror
suspects took too long, that the Justice
Department did not sufficiently differentiate
moderately suspicious detainees from highly
suspect ones, and that the conditions
in one New York City detention center,
where guards were charged with taunting
detainees and slamming them against walls,
were unduly harsh.
Fine's report, however measured its language,
is ultimately as much a misrepresentation
of the government's post-9/11 actions
as the shrillest press release from Amnesty
International. While it pays lip service
to the 'difficult circumstances confronting
the department in responding to the terror
attacks,' it fails utterly to understand
the terrifying actuality of 9/11. Fine's
cool and sensible recommendations--'timely
clearance process, timely service of immigration
charges, careful consideration of where
to house detainees . . . ; better training
of staff . . . ; and better oversight'--read,
frankly, like a joke, in light of the
circumstances at the time.
Recall what the Justice Department and
FBI were facing on 9/11: an attack by
an invisible, previously unsuspected enemy
on a scale unprecedented in this country,
with weapons never imagined. Utter uncertainty
prevailed about what the next hour or
day or week might bring: if these 19 men
had remained undetected while plotting
their assault with such precision, who
else was ready to strike next, and with
what weapons? In New York, the FBI office,
seven blocks from Ground Zero, had to
evacuate on 9/11 to a temporary command
center set up in a parking garage; the
New York INS evacuated its processing
center downtown as well. Electricity and
other utilities were down, as was delivery
and express mail service. One week after
the attacks, 96,000 leads had flooded
in to FBI offices around the country;
tens of thousands more would soon follow,
requiring round-the-clock operations at
FBI headquarters, with thousands of agents
following up the leads. Recriminations
over the government's failure to prevent
the catastrophe also flooded in: Why hadn't
the intelligence community 'connected
the dots'? Why didn't the CIA and FBI
communicate better? How had the State
Department and INS let in foreign terrorists
bent on destroying America?
Given the magnitude of the carnage and
the depth of the uncertainty, the government
would have failed in its duty had it not
viewed suspects as serious risks. These
were, possibly, enemy combatants, not
car thieves or muggers. Justice Department
officials declared that any suspect picked
up in the course of a terror investigation,
if an illegal immigrant, would be held
in detention until the FBI cleared him
of any possible terror connections. Moreover,
if agents, following a lead, were looking
for a particular individual and discovered
half a dozen illegal immigrants at his
apartment, all seven would be detained
as suspects, since the FBI had no way
of knowing who might be an accomplice
of the wanted man. In another safeguard
against letting a terrorist go, FBI headquarters
ruled that it needed to sign off on all
clearances, since only bureau brass possessed
the full national picture of developing
intelligence. Finally, the FBI mandated
CIA background checks on all detainees.
These policies are eminently reasonable.
That they ended up delaying clearance
for an average of 80 days for the 762
illegal aliens detained after 9/11 does
not discredit their initial rationale.
(That delay is not unlawful, since the
government can hold illegal aliens for
an undefined period under emergency circumstances.)
Justice Department officials expected
to release innocent detainees in days,
or at most several weeks, and they were
concerned as the process stretched out;
memos about the need to speed things up
flew around the department daily. Officials
worried about staying within the law and
not violating anyone's rights (which they
did not), but they also worried--and for
good reason--about releasing even one
deadly person. Even in retrospect, this
calculus is unimpeachable: the costs of
being legally held as an illegal alien
and terror suspect for three months without
ultimate conviction, while huge for the
person held, pale in comparison to the
costs of allowing terrorists to go free.
(That some prison guards may have abused
about 20 detainees is deplorable but does
not invalidate the detention policy.)
The inspector general has plenty of good-government
suggestions for how to make sure that,
after the next terror attack, suspects
are efficiently processed, but he is silent
on the paramount questions that will face
the government should a bomb go off in
the nation's capital or a biological weapon
in the subway at rush hour: how to find
out who did it and who is waiting in the
wings, and how to protect the country
in the face of grossly inadequate knowledge.
Should the country experience another
attack on the scale of 9/11, the aftermath
undoubtedly will not follow administrative
law procedures perfectly. As long as the
government does not deliberately or flagrantly
abuse suspects' rights, it need have no
apology for the slow functioning of bureaucracy
through the crisis.
Strategy #7: Treat War as a Continuation
of Litigation by Other Means. For
Bush opponents, Jose Padilla, an American
citizen picked up on American soil and
detained as an al-Qaida operative for
the last year without access to an attorney,
represents the clearest possible case
of the administration's evisceration of
civil rights. And it is truly a hard case,
turning on the question of what rights
an American enemy combatant should have
in a war in which America is the battleground,
and the enemy, wearing no uniform, may
carry a U.S. passport.
This much about Jose Padilla is undisputed:
a Chicago gang-banger convicted of murder
before age 18, he then embellished his
rap sheet with a Florida conviction for
weapons possession. In May 2002, government
agents arrested him at O'Hare airport
coming in from Pakistan.
What happened in between the gun conviction
and the airport arrest is in dispute.
According to an affidavit signed by a
Pentagon official, Padilla traveled to
Egypt, Saudi Arabia, and other favorite
al-Qaida haunts. While in Afghanistan
in 2001, he sold al-Qaida bigwig Abu Zubaida
on a plan for blowing up a radioactive
bomb somewhere in the United States. After
researching the project from a safe house
in Lahore, Pakistan, Padilla flew to O'Hare
to conduct reconnaissance for the 'dirty
bomb' plot, but the government nabbed
him, eventually classifying him as an
'enemy combatant' and sending him to a
South Carolina military brig for interrogation.
An attorney has demanded to represent
Padilla in a habeas corpus proceeding,
challenging the government's right to
hold him, but the administration has insisted
that Padilla must represent himself. Now
that the federal judge adjudicating Padilla's
habeas motion has ruled against the government
on the attorney issue, the administration
has appealed.
In fact, as the judge presiding over Padilla's
habeas petition acknowledged, the Sixth
Amendment and Fifth Amendment guarantees
of due process afford a right to counsel
only in criminal trials, not in a habeas
corpus action. And the government is not
prosecuting Padilla as a criminal. It
is detaining him as an enemy combatant--a
historical prerogative of the executive
during war. Only if the government decides
to try Padilla as an al-Qaida conspirator
would he then have the right to counsel.
Nevertheless, the judge ordered that counsel
be provided to help Padilla make his case
for release, a decision that conflicts
dangerously with the commander in chief's
constitutional duty of securing the national
defense. In the War on Terror, interrogating
al-Qaida operatives is a vital weapon,
whose efficacy depends on the lengthy,
painstaking cultivation of trust and dependency
between the detainee and his questioners.
Let an attorney, whose every professional
instinct is adversarial and obstructionist,
advise the prisoner, and that relationship
would almost surely snap. What if Padilla
were about to crack and give up his superiors
just before a lawyer began consulting
with him? The opportunity to pierce al-Qaida's
structure could be lost forever.
Padilla still has the opportunity to make
his case for liberty before a court, and
the government still has to prove the
validity of his detention. Should he prove
incompetent to argue his petition, the
judge could then appoint a special master
to help find the facts, as legal journalist
Stuart Taylor has recommended. That master
would not represent Padilla but rather
the court's interest in accurately resolving
the case.
The Bush bashers are correct that the
Padilla case, with its serious liberty
issues weighing against serious national
peril, has pushed the law where it has
never gone before. But that is because
the threat the country is facing is without
precedent, not because the administration
is seizing unjustified power.
When the War on Terror's opponents intone,
'We need not trade liberty for security,'
they are right--but not in the way they
think. Contrary to their slogan's assumption,
there is no zero-sum relationship between
liberty and security. The government may
expand its powers to detect terrorism
without diminishing civil liberties one
iota, as long as those powers remain subject
to traditional restraints: statutory prerequisites
for investigative action, judicial review,
and political accountability. So far,
these conditions have been met.
But the larger fallacy at the heart of
the elites' liberty-versus-security formula
is its blindness to all threats to freedom
that do not emanate from the White House.
Nothing the Bush administration has done
comes close to causing the loss of freedom
that Americans experienced after 9/11,
when air travel shut down for days, and
fear kept hundreds of thousands shut up
in their homes. Should al-Qaida strike
again, fear will once again paralyze the
country far beyond the effects of any
possible government restriction on civil
rights. And that is what the government
is trying to forestall, in the knowledge
that preserving security is essential
to preserving freedom." (Heather Mac Donald,
"Straight Talk on Homeland Security,"
City Journal, Summer 2003)
Copyright 2003, http://www.city-journal.org/
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