Taking Liberties: The War on Terror and the Erosion of American Democracy (2 page)

It is not surprising that in the weeks immediately following 9/11, the president and Congress reacted by creating dragnets of all kinds aimed at investigating and preventing any possible recurrences. They did not know whether there were terrorist sleeper cells embedded around the country, how the hijackers had financed their activities, or how Al Qaeda could be neutralized, but they wanted to find out as much as possible in all these areas and to be able to take any action that might be productive. A frightened country demanded protection as well as comfort. So the country’s leaders improvised and adopted a wide variety of emergency measures that could imaginably discover or thwart terrorists. The prevailing idea at the time was that we should take aggressive preventive action even if we didn’t have evidence that a particular action would actually enhance our safety, as long as there was some chance that it might do so. This attitude was epitomized by Vice President Dick Cheney’s “1 percent doctrine”: “If there’s a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It’s not about our analysis … It’s about our response.”
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Congress’s chief contribution was the USA PATRIOT Act, a rather labored acronym for an act actually entitled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.”
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This Act was passed a mere six weeks after 9/11, without any meaningful deliberations or hearings. In retrospect, the assertion that Congress already knew exactly what tools were required to obstruct terrorism sounds like fear-induced swagger. The contents of the Act matched its overconfident title. In hundreds of provisions amending previous laws, the Patriot Act empowered administration officials to spy on anyone, including Americans, with less basis for suspicion and less judicial review; it stretched and repurposed criminal laws by allowing prosecution for “material support” of terrorism even if the person prosecuted did not have any intention of supporting terrorists; it exposed business records, including medical, educational, and library records, to easy capture by government agents in several different ways; and it expanded the reach of the Foreign Intelligence Surveillance Act, initially designed to keep track of Soviet spies, to more easily cover spying on
Americans. Many of these provisions threatened privacy; the freedoms of speech, association, and religion; due process; and equality, but supporters declared that although this was unfortunate, it was necessary—we have to give up some of our rights in order to be safe. Only one senator, Russell Feingold, voted against the Patriot Act and introduced measures to hone its provisions, questioning the widespread assumption that security and liberty were contestants in a zero-sum game.
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President Bush provided dragnets of his own, like a declaration of emergency under which he abruptly seized the assets of a number of American charities, and the creation of a highly secret “President’s Surveillance Program” under which the National Security Agency conducted surveillance of countless numbers of Americans, in defiance of the law in existence at the time. Bush and Cheney were as willing to dispense with the Constitution’s checks and balances as its rights for the sake of combating terrorism, and so the administration repeatedly tried to minimize the role of Congress and the courts—and the American people themselves—in formulating or reviewing antiterrorism strategies.

It is understandable if some of those immediate reactions were overreactions. There are many reasons to be skeptical of the decisions made in the fog of 9/11. First, the course of many of our antiterrorism strategies was set before anyone had a chance to study the events of 9/11, so antidotes were being prepared before the disease had been diagnosed. Second, decisions made in the grip of fear are not likely to be balanced. Third, strategies that may have seemed plausible as emergency measures in the fall of 2001 could prove, over time, to be inefficient, too costly (in terms of rights or resources), or even counterproductive. Finally, short-term emergency sacrifices of rights can be regarded as a break in our usual patterns. Continuing into a second decade and beyond, these emergency measures stop being temporary exceptions and become part of who we are: the New Normal. For these reasons, the 9/11 Commission, which actually did study the causes and consequences of 9/11, recommended that the executive branch be required to bear the burden of showing why extraordinary powers conferred after 9/11 should be retained.
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But our approach to counterterrorism strategies has not changed appreciably during the past decade, despite the fact that a new president occupied the White House. President Barack Obama inherited the weapons and infrastructure of Bush’s War on Terror, along with government employees who had been engaged in the campaigns, and much of the litigation brought to challenge the constitutionality of actions like those listed above. Obama’s rhetoric has certainly been different. He has expressed skepticism about the misleading “war” metaphor and promised his allegiance to constitutional
values. In his inaugural address he declared, “We reject as false the choice between our safety and our ideals.”
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And he has disavowed some Bush-era tactics. His first executive orders promised to close Guantánamo, to impose limits on harsh interrogation techniques, and to put democracy back on track by increasing the transparency of government.

Nevertheless, the Obama Administration has explicitly endorsed or just continued to employ most of the Bush/Cheney post-9/11 strategies when it comes to the rights of ordinary Americans to be free from unfair prosecutions and excessive government spying. Obama’s Solicitor General and Supreme Court choice Elena Kagan, for example, told the Supreme Court that a Patriot Act–enhanced provision criminalizing the provision of “material support” to terrorists could properly be applied to prosecute people who try to persuade terrorist groups
not
to commit acts of terrorism, or even to lawyers filing briefs on behalf of groups the government believes have ties with terrorism.
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Obama might never actually prosecute humanitarians or lawyers, but he does want to retain the dragnet power to do so. Candidate Obama denounced the use of National Security Letters to gather information about innocent Americans without any court order, but the Obama Administration has asked Congress to expand the reach of this power.
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Senator Obama voted in favor of the institutionalization of an expanded version of Bush’s National Security Agency warrantless spying program, and in favor of granting immunity to the telecommunications providers who cooperated with that program even while it was plainly illegal. Consistently with those positions, the Obama Administration has defended the constitutionality of that controversial program. Although President Obama has expressed a greater willingness to share power with Congress, he sometimes echoes at least some of Bush’s antipathy to meaningful congressional oversight. Obama threatened, for example, to veto a version of the 2010 intelligence authorization bill in which congressional Democrats provided for increased oversight of intelligence agencies.
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And Obama’s Justice Department has continued the Bush effort to sideline the courts by any means imaginable. His lawyers, for the most part, stick to the Bush lawyers’ script. They employ the same extreme procedural arguments, including the state secrets privilege and claims of immunity, to tell the courts that they should not even think about finding executive actions like sprawling surveillance programs unconstitutional, or finding Bush-era government officials accountable for illegal actions.

The Obama Administration seems, at least at times, to agree with the Just Trust Us philosophy that unilateral executive power is acceptable—as
long as the people wielding that power act in good faith. President Obama and his appointees no longer object as strongly to unilateral executive power as candidate Obama did, because they believe that they truly are trustworthy. Attorney General Eric Holder, for example, issued a much heralded revised policy on use of the state secrets privilege.
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In the extreme form employed by the Bush Administration, this claim of privilege asserted that the executive branch rather than the courts should get to decide which cases the courts must dismiss if the executive branch says that the very act of litigating a claim would compromise national security. Bush lawyers had argued, for instance, that the president’s surveillance program was too secret even to be reviewed by the courts, as was the “extraordinary rendition” program that led to people being kidnapped and sent to other countries where they were locked in black holes and tortured. Holder earnestly announced that his state secrets policy would be different—
he
would only claim the privilege where it really is necessary. But he still reserved the option of not showing the courts the documents on which his assessment is based.
¹⁰
Just trust
us.
We’re different.

The Holder state secrets policy itself is not substantively different from his predecessors’ policy and, given that the whole point of these privilege claims is to prevent issues from being openly discussed, we are unlikely ever to be able to evaluate whether Holder’s application of that policy will indeed be different. The Holder Justice Department clearly understands the dangers of unilateral executive power exercised in secret—the policy announces that the state secrets privilege will not be used to cover up mistakes—but expects us to be reassured by a solemn insistence that, unlike their predecessors,
these
lawyers will not succumb to those dangers. Plato, in
The Republic,
uses the myth of Gyges, who discovers a ring that renders him invisible, to discuss the temptation of those who believe their actions are invisible to disregard the limits of the law.
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It is unrealistic to believe that people who have undertaken a noble mission—to safeguard the American people—will police their means of pursuing that mission effectively if they also believe that they will not be accountable for their actions. That is why the Constitution establishes an elaborate system of checks and balances to provide accountability. But wielding the state secrets privilege, invisible government actors claim the power to decide for themselves when and if they will give up their cloak of invisibility. Thus, in a case involving eavesdropping without a warrant, Obama Administration lawyers who were urging the court to dismiss the case on the basis of the state secrets privilege acknowledged that secrecy can indeed provide
a cover for government misconduct. So the lawyers addressed this problem by promising the court that the government (under Bush as well as Obama) really had not committed any misconduct. And they continued to conceal documents that might have shed light on whether or not that assertion was accurate.
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It is certainly true that, in some respects, the Obama Administration has used its weaponry more sparingly and with more circumspection. Bush-era officials, for example, denied Swiss Islamic scholar Tariq Ramadan a visa to enter the United States, preventing him from accepting a teaching position at Notre Dame. Their justification changed so abruptly (Did he preach or endorse terrorism? Had he contributed to an Islamic charity with alleged ties to terrorism?) and matched the actual facts so poorly (Ramadan styles himself as an anti-jihad Islamic reformer) that it began to seem obvious that this was an ideological exclusion—a McCarthy-like attempt to keep prickly ideas out of the country. Obama lawyers initially defended this exclusion in court, but the issue was mooted when Secretary of State Hillary Clinton issued Ramadan his visa. While other scholars shared Ramadan’s fate under the Bush Administration, the Obama Administration does not seem to be trying to fence out ideas. During the Bush era, antiwar activists frequently complained that they were being subjected to special surveillance, harassment, or other retaliation because they expressed their dissenting views in ways that are supposed to be protected by the First Amendment.
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Comparable complaints about misuse of antiterrorism powers against dissenters or political opponents have not been leveled against the Obama Administration.
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It is still too early to assess to what extent the Obama Administration will manage to avoid the mistakes and abuses of Bush Administration officials in implementing antiterrorism laws—like the prosecution of a University of Idaho graduate student for posting links on a website, or the FBI’s persecution of Oregon lawyer Brandon Mayfield, who was suspected of involvement in the Madrid train bombing even after it should have been apparent that he was completely innocent. But tools as powerful as those in the post-9/11 arsenal are dangerous no matter who wields them. Dragnets, especially when used in secret, will sweep in people who are not the intended targets—people who are innocent but who suffer collateral damage. When broad discretionary powers are delegated to thousands of government agents, it is inevitable that there will be serious lapses of judgment somewhere along the chain. George W. Bush did not tell the FBI to arrest Brandon Mayfield. And not every Transportation Security
Administration (TSA) or FBI agent will exercise discretion in the same way Barack Obama or Eric Holder would.

Furthermore, many of the Patriot Act–enhanced statutes do harm even when they are not called into play. Dragnet laws that make it possible to prosecute other webmasters, or to prosecute humanitarians who come too close to members of a designated “terrorist” group while they are distributing aid, abridge our First Amendment rights by their very existence. They cause people to think twice about whether to engage in speech or association that might draw unwanted government attention or suspicion. Laws that threaten nonprofit charities and foundations with the possibility of being blacklisted and having their assets unceremoniously seized, on the basis of secret hearsay evidence, discourage people from exercising their First Amendment right to choose their associations and to fulfill their religious obligations by contributing to charities of their choice. Overbroad surveillance laws deter people from speaking freely on international calls, even if they are talking to their attorney or an investigative journalist, making it difficult for lawyers and reporters to do their jobs. Laws that require schools, hospitals, and libraries to turn over sensitive records to the government undermine relationships of trust and cause people to think twice before sharing information that might be needed to help them.