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 cafeacute;s. 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-peek” 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.