Taking Liberties: The War on Terror and the Erosion of American Democracy

TAKING LIBERTIES

TAKING LIBERTIES

The War on Terror and the Erosion of American Democracy

SUSAN N. HERMAN

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Library of Congress Cataloging-in-Publication Data
Herman, Susan N.
Taking liberties : the war on terror and the erosion of american democracy / Susan Herman.
   p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-978254-3 (hardback)
1. Terrorism—Prevention—Law and legislation—United States. 2. Internal security—United States.
3. Detention of persons—United States. 4. Electronic surveillance—United States.
5. Civil rights—United States. 6. War and emergency powers—United States.
7. War on Terrorism, 2001–2009. I. Title.
KF9430.H47 2011
344.7305′32517—dc23        2011016285

9 8 7 6 5 4 3 2 1

Printed in the United States of America
on acid-free paper

To Paul, who was with me every step of the way, with love.

Contents

Acknowledgments

Introduction

I  Dragnets and Watchlists

1  The Webmaster and the Football Player

Material Support of Terrorism

The Football Player

The Material Support and Material Witness Dragnets

2  “Foreign Terrorist Organizations,” Humanitarians, and the First Amendment

The Iranian Democrat

Peacemakers and Humanitarians

3  Charity at Home

The Campaign Against Charities

Collateral Damage to Freedom of Religion and Association

4  Traveling with Terror

Watching the Watchlists

Security Theater?

The Rights of Others

5  Banks and Databanks

Financial Institutions as TIPSters

Watchlists and the Private Sector

Does It Work?

Collecting the Dots

Why Should I Care?—Privacy and Democracy

II  Surveillance and Secrecy

6  Gutting the Fourth Amendment

The Fourth Amendment and Terrorism

“Foreign” Intelligence Surveillance, Americans, and the Patriot Act

Mayfield v. United States Part II

The Secret Court and the One-Sided Litigation

A Job for Congress and the Courts

7  The Patriot Act and Library/Business Records

American Librarians

Judicial Fumbling

Third-Party Records and the Fourth Amendment

Reconsidering the “Library Provision”

8  Gagging the Librarians

The Library Connection

Other Librarian Tales

9  John Doe and the National Security Letter

Why National Security Letters?

John Doe and Victor Marrero

Loosening the Gag

Fourth Amendment Rights for NSL Recipients

First Amendment Rights for Internet Users

The Inspector General Exposés, 2007–2010

10  The President’s Surveillance Program

In the Halls of the Department of Justice

The Rubber Stamp Congress

Closing the Courthouse Doors

Post-FAA Litigation

The Secret Court Strikes Again

“What Else Is It That We Don’t Know?”

III  American Democracy

11  Losing Our Checks and Balances: The President, the Congress, and the Courts

The View from the Oval Office—From Bush to Obama and Beyond

The Sleeping Watchdog

Secrecy and the Courts

The Eclipse of the Courts

Conclusion

Ordinary Americans and the Constitution

Restoring Balance

Notes

Further Reading

Photo Credits

Index

Acknowledgments

M
Y HEARTFELT THANKS
to my readers and sources, without whom this book truly would not have been possible: Liz Brandt, Nusrat Choudhury, George Christian, Ralph Fertig, Paul Gangsei, David Gangsei, Erica Herman Gangsei, Lee Gelernt, Melissa Goodman, George Herman, Jameel Jaffer, Abdullah al-Kidd, Lindy Laub, Mary Lieberman, Michael Madow, Christopher Man, Brandon Mayfield, Nick Merrill, David Nevin, Roya Rahmani, Paul Rashkind, Anthony Romero, Ali Safavi, Erich Scherfen, Steve Shapiro, Jay Stanley, Rubina Tareen, Nelson Tebbe, Jennifer Turner, Vic Walczak, and Ben Wizner.

For their invaluable research assistance and support, I am grateful to Emily Powers, Anita Aboagye-Agyeman, Allison Lack, Tia Clinton, and Ateqah Khaki, and for their commitment to this project and wise advice, I thank my agent, Sydelle Kramer, and my editor, Dave McBride.

For academic support and early encouragement, I thank my colleagues and faculty workshop members at Brooklyn, Cornell, and NYU Law Schools, and the Brooklyn Law School research stipend program. Thanks also to Professor Theodore Ruger.

I also want to thank and acknowledge the perceptive early critics of the Patriot Act, including Rachel King, whose work at the ACLU served as a template for all who followed, and Russell Feingold, the only senator to vote against the Patriot Act.

TAKING LIBERTIES

Introduction

A
N ACQUAINTANCE, KNOWING
of my position as president of the American Civil Liberties Union, asked me to tell her what the ACLU was doing these days. “But don’t tell me about that Guantánamo stuff,” she said. “I’m so sick of hearing about that. Why should I care about those people when they’re not even Americans?” I started to explain that the Patriot Act and other post-9/11 antiterrorism measures do affect Americans, including her, but she waved me off, insisting that all of that had nothing to do with her.

This woman is not alone is assuming that the War on Terror does not affect law-abiding Americans, or even that all “that Patriot Act stuff” ended when George W. Bush left the White House. But she is wrong. Her own rights and those of many other ordinary Americans—and even the democracy she takes for granted—are compromised by antiterrorism strategies unleashed after September 11, 2001. She could be one of the hundreds of thousands of innocent Americans the FBI has been spying on using the broad net of the Patriot Act and supplemental powers; her banker and her stockbroker, among many others, have collected financial and other personal data about her to lodge in government databanks, ready to trigger an investigation of her if the government happens to connect some dot of information to her dots (even if she’s done nothing wrong); her computer geek neighbor might be one of the innumerable telecommunications workers and librarians whom the FBI has conscripted to gather information on hundreds of thousands of occasions, perhaps about her friends or acquaintances—and then ordered not to tell anyone anything about their experience on pain of criminal prosecution; her nephew could be the computer studies student prosecuted for providing “material support to terrorists” (a crime punishable by up to fifteen years, imprisonment) because he served as webmaster for a website posting links to other people’s hateful comments; her son could be the college student detained and interrogated for packing his Arabic-English flash cards to study during a plane flight; she could find herself unable to complete an important business or personal trip because her name was incorrectly placed on a No Fly list,
or simply because she has a common name, like “T. Kennedy”; her favorite charity could be shut down for years or even permanently because a government bureaucrat once decided to investigate it even if the investigation went nowhere; her generous contribution toward humanitarian relief might be sitting in government escrow for years instead of reaching the intended recipients or being returned to her; her doctor’s assistant could be the young Kashmiri-American who was stopped and searched in the New York City subways on twenty-one separate occasions even though the odds of the same person being selected for a “random” search that often are 1 in 165 million. She might not know the Americans whose lives were seriously derailed because government agents mistakenly identified them as terrorists—like the Oregon lawyer who was falsely suspected of involvement with terrorist incidents in Spain due to an incorrect identification of his fingerprint, or the former University of Idaho football player who was arrested on the pretext that he was needed as a “material witness” although he was never asked to testify—but post-9/11 policies have also fostered devastating mistakes like these.

All of these things have happened; all of these things can keep happening. Should we be willing to tolerate this level of surveillance, intrusion, and potential error because these efforts are helping to keep us safe? The beginning of the second post-9/11 decade is a good time to start a serious reevaluation of our approaches to fighting terrorism and to expose and question some underlying assumptions that may not be serving us well. The War on Terror decade has generated a powerful frame for evaluating government antiterrorism strategies, based on three assumptions: (1) terrorism is an exceptional threat; (2) we need to adapt by giving up rights in order to be safe; and (3) our strategies for combating terrorism have to remain secret so we just have to trust the president, who is best able to operate in secrecy, to decide what rights we need to give up. This fear-inflected frame is the very antithesis of constitutional democracy. The time has come to rattle this frame and return to first principles in reevaluating our course.

In this book, I will not be talking about “that Guantánamo stuff.” Many other books, articles, and nationwide conversations have agonized about the legality, constitutionality, and morality of the detention and interrogation policies 9/11 tempted us to use against suspected terrorists. Many scholars and pundits have also criticized the Bush/Cheney Administration up, down, and sideways for its responses to 9/11. This book is about us and it is about now. A decade is a long enough time to allow us to step back and try to look at the whole picture of the costs and benefits of strategies that
were forged during the panicky days right after 9/11. The death of Osama bin Laden in some respects ended an emotional chapter, perhaps freeing us to view the costs and benefits of our antiterrorism strategies with a calmer eye. And more than halfway through Barack Obama’s term is a good time to disentangle the criticisms of George W. Bush’s policies, many of which are still with us, from the more personal criticisms of his presidency itself.