Protecting Civil Liberties at a Time of Crisis
Morton H. Halperin
October 25, 2001
Civil Libertarians understand as clearly as anyone else that the events of
September 11 change America, and they support efforts to track down those who
perpetrated these acts, and to take effective steps to deter new terrorist attacks
on Americans at home and abroad.
Where they may differ with others is in their skepticism that expanding
surveillance authorities is the most effective way to prevent further attacks. They
also fear that new powers given to the government will be used against targets
other than the terrorists we all have in mind. And they insist that whatever
changes are made in the law be made carefully, following normal procedures and with
a serious effort to balance national security and civil liberties.
What has happened so far gives us concern on all three counts. Since
September 11 we have seen threats to civil liberties in three areas: government
efforts to control debate and limit access to information, incarcerations of large
numbers of people in a very troubling manner, and the rushed passage of an
anti-terrorism bill.
Restrictions on Debate and Information
The effort to control public debate began on September 11 when those in the news
media who criticized the president for not returning immediately to Washington
received phone calls from the White House warning them that this was not the time
to second guess. Then those who criticized the calls were attacked in public. More
recently, and more ominously, the National Security Advisor called the major
networks and then the print media to warn against running the full text of Osama
bin Laden's statements. Assertions that coded messages might be transmitted ignored
the fact that the full text would be available on other networks and on the
Internet and that the U.S. networks broadcast an English translation. Clearly, the
administration was most interested in preventing the American people from hearing
directly what the terrorists had to say.
The government is also going to great lengths to keep control of its own
information. Websites have been shut down and briefings for Congress curtailed, at
least before the Congress complained. The Attorney General issued a new directive
on the FOIA in which he reversed the existing presumption in favor of secrecy,
warned agencies not to disclose information that the FOIA did not require be
disclosed, and promised to vigorously defend decisions to withhold information.
None of this is to say that the government does not have the right to
withhold information which would benefit our adversaries, including the terrorists,
and which is not essential for public debate on the issues we face. Clearly the
administration is going beyond that in its efforts to intimidate the news media and
suppress information.
Detention without Due Process
The incarceration of hundreds of people for more than a month after the terrorist
attacks is also deeply disturbing. The government has refused to even give out the
names of the people being held or explain why they are being detained. Press
reports suggest that judges have issued gag orders and that attorneys feel under
pressure not to challenge the procedures for fear that it will lead to their
clients being subjected to greater punishment. One of the hallmarks of a
constitutional state, and of the U.S. Constitution in particular, is that the
people have a right to know who is arrested and for what reason, and to have a
magistrate decide in public if the detention is justified. This right protects not
only individual detainees but also the public and society for it stops the
government from mounting secret prosecutions that do not abide by the rule of law.
In a time of crisis, there may be reason to hold some people, but not in this
manner.
Given what the government has done using pre-Sept. 11 authorities, it is
hard to see why it thought it needed additional powers to detain immigrants. Yet
the government sought such powers, along with a broadening of its surveillance
authority and its right to pass information between law enforcement and
intelligence agencies. The anti-terrorism bill passed on Oct. 25 permits the
government to use the much less stringent provisions of the Foreign Intelligence
Surveillance Act (FISA), which was intended only for intelligence gathering, to
compile evidence of a crime that would lead to the indictment of citizens as well
as aliens. This means that the government can wiretap without probable cause and
conduct secret searches of homes and offices without any kind of notice before or
after the search or any kind of accounting of what was seized. Another provision
purports to authorize the government to delay notice of a search in all criminal
investigations, not just in cases of suspected terrorist activity.
An Overly Broad Anti-terrorism Bill
Civil libertarians recognize along with everyone else that the government may well
need additional powers to deal with international terrorists determined to kill
Americans at home and abroad. But they also realize that a careful and deliberative
process must be followed when the government moves aggressively to expand its
powers at the expense of individual freedoms.
What is troubling in this case is that in the drafting and passage of this
bill, no such process was followed. The administration refused to identify what
emergency authorities it might need to prevent additional attacks while a careful
examination was conducted of what exactly went wrong and how, or even if, existing
powers proved inadequate. It refused to limit the new powers to investigations of
terrorists who threaten Americans, and it refused to meet with outside experts to
discuss how to narrow the provisions so that civil liberties are not violated.
The administration simply dusted off every proposal it had on the shelf, many of
which had been defeated previously. It wrapped the old proposals into a new bill
and sent the bill up to Congress without new interagency review, demanding that it
be passed immediately. When the House Judiciary Committee unanimously reported a
bill with some safeguards, the administration successfully pressured the House
leadership to abandon the bill and adopt most of the far worse Senate measure. The
final text was drafted in a secret and closed informal conference. No conference
report or committee reports exist to support the bill's passage.
This is a dangerous way to legislate the delicate balance between national
security and civil liberties.
Morton H. Halperin is a senior fellow of the Council on Foreign Relations. He
chairs the advisory board of the Center for National Security Studies and is
counselor to the Constitution Project and the National Security Archive. He served
in the Johnson, Nixon, and Clinton administrations in the Department of Defense,
the State Department, and on the staff of the National Security Council.
This article and other analyses of the impact of the September 11th attacks on
civil society in the U.S. and abroad are available on the Soros foundations network
website at www.soros.org.
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