Taking Liberties: The War on Terror and the Erosion of American Democracy (3 page)

The immediate emergency after 9/11 was to apprehend and neutralize members of Al Qaeda. But the War on Al Qaeda quickly morphed into a generalized War on Terror. Many Patriot Act and other tools that may have seemed acceptable approaches to dismantling Al Qaeda and its direct threat to Americans on American soil are not actually limited to that goal. The emergency-inspired antiterrorism laws I will describe apply in full force to dozens of other government-designated “terrorist” groups, ranging from Hamas to Turkish Kurds to pro-democracy activists in Iran. And some of the post-9/11 expanded powers have already been prey to mission creep. Patriot Act–authorized “sneak and peek” warrants, dispensing with notice that one’s premises have been searched, were used 763 times in fiscal year 2008, but only 3 of those cases involved terrorism investigations.
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When a Patriot Act anti-money-laundering provision was used to investigate the owner of a Las Vegas strip club for bribery, Nevada Senator Harry Reid remarked: “The law was intended for activities related to terrorism and not to naked women.”
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Once we become accustomed to lowering our baselines—of what counts as an acceptable level of surveillance, or a tolerable criminal law, for example—it is all too easy for us to endorse the use of increasingly familiar tools against anyone, not just a suspected terrorist,
but a tax evader or a racketeer. And the Constitution is downsized another notch to accommodate another law enforcement strategy.

Legal historian Geoffrey Stone reminds us that Americans have, in the past, overreacted during times of war or crisis—our shameful treatment of West Coast Japanese-Americans during World War II, our war on an ideology during the McCarthy era—but observes that after the emergency ends, we generally regret what we have done and are able to regain our balance.
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But when does the emergency of terrorism end? Unlike a conventional war, the “War on Terror” has no natural end point. As Barack Obama has recognized, terrorism is a tactic. We cannot end this metaphorical war by signing a peace treaty with Al Qaeda and dozens of other groups we list as terrorists. Are we willing to countenance a second decade of emergency reactions that are more costly to our rights and to our democracy than most Americans realize? The time has come to decide whether these weapons are truly consistent with our Constitution’s foundational principles, rather than just trusting that the current president will use them more wisely than his predecessor. As Justice Robert Jackson so memorably said in the
Korematsu
case, dissenting from the Supreme Court ruling allowing over 100,000 loyal Japanese-Americans to be removed from their homes because the government said it was impossible to distinguish a few disloyal individuals, once we opportunistically revise a constitutional principle, “[t]he principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
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Those who trust Barack Obama more than they trusted George W. Bush should bear in mind that there will be other presidents after Obama. The level of trust in a particular administration can indeed affect the extent to which people will fear being arrested or investigated for exercising their rights. But future presidents will inherit the Bush-era arsenal of weapons unless we persuade Obama and Congress to disarm or retrofit some of the undesirable ones now, and those presidents may be less sensitive to constitutional values than a former Constitutional Law professor.

Whatever one’s personal views of Barack Obama, it seems surprising that at a time when, according to public opinion polls,
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three-quarters of the American people distrust the federal government, we are willing to trust that same government to strike the right balance between our cherished constitutional rights—indeed, our democracy itself—and national security. Why is this so? One reason is certainly that most Americans do
underestimate the costs of our antiterrorism programs—in privacy, liberty, fairness, and equality as well as in resources. This is partly because so many of those costs are invisible behind the wall of secrecy; because the laws involved are dauntingly complex and hard to comprehend; and because it is difficult to put together a complete picture just based on periodic news stories about particular incidents or debates. I am writing this book to offer a more complete and coherent account of those costs.

A second reason there has not been more resistance is undoubtedly that many Americans believe that these laws and policies will not cause them much inconvenience if they are not Muslims or Arabs. As the following chapters will show, many of our post-9/11 strategies do have a significant impact or potential impact on a large number of people regardless of their religion or ethnic origin. But it is true that the most substantial costs of our antiterrorism campaign have fallen on Muslims and Arabs, whether they are American citizens or not. Muslim-Americans are more susceptible to being prosecuted even if they are innocent, to being prevented from returning to their homes in the United States because they are incomprehensibly included on a No Fly list, to having their banks inexplicably decide to close their accounts, or to having their legitimate charities put out of business.

Muslim-Americans are Americans, even if their names or religious practices seem unfamiliar to many, and they have the same constitutional rights as all other Americans. But as shown by the recent controversy over the New York City mosque planned for a site near the World Trade Center, Muslims are readily stereotyped as terrorists or potential terrorists because the 9/11 hijackers were Muslims. Rationally, everyone should know that the vast majority of the millions of Muslims in the United States are law-abiding people who have nothing to do with terrorism. Rationally, everyone should understand that targeting all Muslims, or any Muslim who happens to be within sight, is a remarkably ineffective and probably counterproductive way to fight terrorism. But emotionally, many Americans are suspicious of Muslims generally and so are willing to countenance treating any or all Muslims as suspect.
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This stereotyping is unjustifiable and un-American. Earlier waves of immigrants, whether Irish, Italian, or Jewish, also met hostility and discrimination. During the post–World War I Palmer Raids, thousands of Russian and Eastern European immigrants were arrested, prosecuted, deported, and sometimes abused because Attorney General Mitchell Palmer thought that because some anarchists were immigrants, it was logical to assume that any immigrant (people whom he described as looking “sly and crafty”) might be an anarchist.
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We should
be able to learn from our history that when we assume guilt by association, when we target groups of people because of their religion or ethnicity, no good is accomplished and we are later ashamed. The Equal Protection Clause of the Fourteenth Amendment, added to the Constitution after the Civil War to prevent the freed slaves from being abused because of their race, embodies our commitment to treating every person as an individual rather than solely as a member of a racial, ethnic, or religious group. The American tradition of tolerance goes back to the original framers of the Constitution in the eighteenth century. Benjamin Franklin, for example, writing in his autobiography about the nonsectarian nature of a church in Philadelphia, said that “even if the Mufti of Constantinople were to send a missionary to preach Mohammedanism to us, he would find a pulpit at his service.”
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An additional reason we have been just trusting the president is that the last ten years have inculcated in many Americans a sense that we cannot know enough to make the policy decisions about how much surveillance is too much or whether particular security programs work. While it is certainly true that the rigors of secrecy make it difficult for us to assess what benefits we may be getting from broad material support laws, wholesale surveillance, or massive data banking, for example, there is no good reason why the American people cannot be included in the decision-making process to a greater degree than we have been so far. We, the people, have been excluded by excessive claims of secrecy and infantilized by the Just Trust Us approach. The other side of the Just Trust the Government coin is distrust of the American people. In the chapters to follow, I will document how antiterrorism laws are built on lack of faith in the American people, with our leaders positing that we can’t be trusted to evaluate hateful ideas for ourselves, that we can’t be trusted to talk to a terrorist, that we can’t be trusted to form our own opinions about the wisdom of antiterrorism measures. This is not American democracy.

Some might contend that we accept this diminished, antidemocratic role because Americans have become generally disengaged and passive and do not expect to be able to control the government. If this is true, it is a dangerous pattern and one that we, like many of the people I will describe in the book, should resist vigorously. In addition to fighting apathy, we also battle powerful psychological forces when we confront the question of what to do about terrorism and rights. Fear of terrorism makes it difficult for us to be rational and easy for us to hope that the government actually does know better than we ever could how to protect us. And so
we may not really want to learn that the government’s promises to keep us safe are inflated or that particular tools vaunted for their ability to obliterate terrorism don’t amount to much more than dearly bought magic beans.

Because we prefer, or maybe even need to believe that we can buy security by squandering our liberty, contrary information may bounce right off of us. Linguist George Lakoff tells us that a frame on an issue, once embedded, can trump facts.
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The War on Terror frame has us start with the assumption that we are unsafe unless we give up some of our rights and, conversely, that giving up some of our rights is likely to make us safer. Beginning with that premise, people have been willing to trust the New York City Police Department, for example, when it declares that random searches of backpacks in the subway will deter terrorists. We want it to be true, and so perhaps we, like the court finding the program to be constitutional, don’t want to ask too many hard questions. Will this program really prevent terrorism if any terrorist can simply walk away and enter the subway at a different stop? Shouldn’t we be concerned if it seems that the program, despite contrary assurances, involves racial profiling of people with brown skin who look Muslim or Arab? I have heard people say that they don’t actually think the New York City subway search program is an effective way to prevent terrorism, but it still makes them feel safer. After a decade of watching antiterrorism measures being instituted and listening to assurances that they are effective—usually with little or no evidence offered to back up those assertions, on the excuse that both our successes and failures must be kept secret—are we willing to ask hard questions about whether those programs are really effective, cost-effective, or counterproductive? Or are we so anxious that we will accept placebos, even if they have serious side effects? Are we willing to play our intended role in a constitutional democracy, or do we prefer to let the president decide what’s best for us?

Democratic distrust is not ad hominem. It extends equally to George W. Bush, Barack Obama, and every one of their successors. The Constitution is a very distrustful document. Under its hydraulic system of checks and balances, presidents are rarely allowed to make important decisions—like appointing a Supreme Court Justice, entering a treaty, or declaring war—without participation by Congress. The courts then provide an essential check if the president and Congress are not respectful enough of our rights. But during most of the War on Terror decade, Congress has remained passive, letting the president make too many key decisions unilaterally and allowing the executive agencies to police themselves. As the
examples I will give clearly show, this is a mistake, just as the Constitution predicted. Discretionary powers exercised in secret, without sufficient oversight, are easily subject to abuse and, as I will document, have in fact been extensively abused.

And the courts have allowed themselves to be muzzled, an even graver mistake. In fact, the courts have actively collaborated in keeping themselves from speaking out on behalf of our rights. Although the Supreme Court decided a series of historic cases questioning the president’s and then Congress’s detention policies (“that Guantánamo stuff”), the Court simply declined to hear case after case where Americans complained that our own rights are being compromised by excessive secrecy and overzealous antiterrorism strategies—the issues I will be discussing in this book. The lower federal courts have hidden behind a dizzying array of procedural excuses for refusing to consider constitutional claims about issues affecting us. A number of courts have declared that no one has standing—that is, the right to bring a lawsuit—to challenge eavesdropping programs unless they can prove that the government has been listening to their own telephone calls or intercepting their own e-mails. This is a true Catch-22, when the whole point of secret surveillance is that the target is unaware of being the target. Accepting this definition of standing amounts to benching the courts. Executive branch demands for secrecy have compromised litigation in many cases and wholly precluded it in others, as courts have accepted radical standing, governmental immunity, and state secrets privilege arguments. Courts have allowed the government to conceal key documents from the lawyers on the other side and sometimes from the court itself, and even conspired to keep the very existence of entire cases a secret. The Supreme Court refused to decide any case about the domestic impact of antiterrorism strategies until 2010. And then, in the case of
Holder v. Humanitarian Law Project,
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the Court essentially just deferred to the government’s assertions that the dragnet law in question (a broad material support law) was useful enough to warrant elbowing the First Amendment out of the way.