There is an old joke that goes something like this: How do you find a needle in a haystack? Why, you burn down the haystack. The joke is unfortunately reminiscent of the infamous Viet Nam explanation that ?We had to burn the village down in order to save it.? In the wake of 9/11, the concern of every American has to be that we root out terrorists without burning down the constitutional village. And so far, the omens are not good.
In the wake of 9/11, the concern of every American has to be that we root out terrorists without burning down the constitutional village. And so far, the omens are not good.
The first response to 9/11 was the so-called “USA Patriot Act”—an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” That has been followed by various presidential orders, actions by the Justice Department, and creation of the Dept. of Homeland Security—many of which threaten constitutional liberties, and most of which do very little to make us safer. Let me just go through these with you.
The USA Patriot Act rewrote laws that had been put in place to curb government excesses. It gave the Attorney General powers that would have been unthinkable prior to 9/11. After the USA Terrorist Act, the government can now more easily conduct secret trials, listen to privileged conversations between prisoners and their lawyers, imprison people indefinitely on minor charges without even confirming that they are being held, eavesdrop on any telephone that a suspect may use, sort through thousands of private emails while promising not to read “content” (a term left conveniently undefined), conduct so-called “sneak and peek” searches for physical evidence without notifying the suspect at the time, rummage through school records of foreign students, obtain library records for a history of books checked out by anyone, and much more. It is very important to note that these new powers are not limited to the search for terrorists—they are expansions of the general criminal law. Many of these provisions are things that the FBI and other law enforcement agencies have wanted for years, but were unable to get Congress to pass.
The Patriot Act allowed the Attorney General to incarcerate—indefinitely—anyone he, in his sole discretion, deems to be a threat to national security. That provision was overturned by the Supreme Court, but other, equally troubling provisions remain. The AG can still incarcerate non-citizens based solely on his word that they present a threat to national security; probable cause standards for obtaining wiretaps have been eliminated; the FBI can get sensitive medical, financial, mental health and education records without a court order; the AG can designate any group as a terrorist group and prevent members of that group from entering the US; people who are questioned about activities of coworkers or fellow students can be subject to criminal penalties for talking about it.
As one commentator has noted, “The Act treats every American as a potential suspect, every federal agent as an angel. It asks us to ignore such dark episodes as the surveillance of Martin Luther King, Jr., or the Red files of the McCarthy era.” And when challenged about these unprecedented powers, Ashcroft accuses those challengers of being “anti-American.”
The Patriot Act was followed by a number of other initiatives. Some caused such public outcry that they went nowhere—remember the attempt to turn your friendly meter-reader into a government spy? Others got trimmed back a bit, like the President’s military tribunal proposal, that would essentially have allowed secret trials, no juries, guilty verdicts by a majority of the judges, followed by secret executions. No appeals, no adherence to the usual rules of evidence, no oversight. The final language of the Executive Order establishing the tribunals says “Any individual who is not a US citizen with respect to whom I determine from time to time in writing that: there is reason to believe…is or was a member of the organization known as Al Qaida; has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, or have as their aim to cause injury to or adverse effects on the United States, its citizens, national security, foreign policy or economy; or has harbored one or more [such] individuals…” International terrorism is nowhere defined. No proof is required—just the personal say-so of the President. The language would cover family members of a Guatamalan who once discussed the idea of chaining himself to the fence of a United Fruit company to protest that company’s presence or activities in his country—after all, that would threaten the US economy. We are simply to trust the government not to abuse its powers.
In addition to the grant of unprecedented powers to the government, we have seen the creation of the Dept. of Homeland Security (a name that has an eerie resemblance to “fatherland” rhetoric in the second WW). That new department is a behemoth; what is not clear is how it will improve security, or even work. Cynics have suggested that it was motivated more by considerations of union-busting than security—the President did not want federal workers being transferred to the Dept. to be covered by civil service. Be that as it may, so far all the department has done is issue multicolored alerts and advise that we all buy duct tape. Meanwhile, the administration has wholly failed to fund public service efforts at the state and local levels, despite its promises to do so. One could argue that it is those local agencies that are most likely to root out terrorist activities.
I don’t want to leave the impression that none of the changes have been helpful. Better communication between law enforcement agencies is clearly called for. Nationalizing airport security was probably a good idea. I personally don’t object to the change in the wiretap laws that allows police to show probable cause to follow a person, rather than a particular phone. In an era of cell phones, that makes sense. But overall, none of what the Administration has done makes me feel safer—and some things make me feel far LESS safe.
From its inception, this administration has thumbed its nose at the international community and its institutions. Bush simply refused to comply with a number of treaties that this country had negotiated and ratified in good faith—beginning with the Kyoto accords, but going well beyond that to a variety of arms treaties. We have refused to be bound by the International Criminal Court, citing reasons that are quite simply untrue. We have undermined the United Nations and NATO. None of this makes sense in a world where terrorism is international, and where we need the help and cooperation of other countries if we are to root it out. Indeed, with the war in Iraq, we have dissipated the good will America enjoyed after 9/11, and we have immeasurably increased the likelihood of terrorism.
In a recent NYTimes column, Nicholas Kristoff reports that Muslim figures who sided with the U.S. after 9/11 are now calling for Jihad against Americans.
In conclusion—we have burnt our constitutional haystack, but we are far from finding that needle. We are less safe, less secure, less free, and more alone in the world than we were three years ago, and duct tape isn’t going to help.