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Defense of Freedom, an ad hoc group ("coalition" was thought
to imply too much chumminess) of 130 organizations of wildly varying
basic views recently released a 10-point statement on the importance
of defending civil liberties. Unanimity was possible only because
the statement was all generalizations. "We can, as we have
in the past, in times of war and of peace, reconcile the requirements
of security with the demands of liberty," and so on.
These lofty
sentiments are universally shared, but they provide little specific
guidance. Suppose five people with Middle Eastern names board an
airplane and the guard looks extra at their bags — racial profiling
or common sense? The FBI wants wiretaps to cover a person rather
than a single telephone — minor adaptation to the wireless
era or octopus-like expansion of power? Should information on financial
transactions collected by the government to cut off economic support
to terrorists be passed on to the IRS or the drug enforcers? None
of these issues were dealt with at the group's press conference,
which was wise, since the occasion would have dissolved in mutual
antipathies.
When not overly
general, discussion tends to be ensnared in minutiae of civil-liberties
jurisprudence. Constitutionally, the government can tap telephone
calls only with a warrant issued upon "probable cause."
However, it can upon mere suspicion install devices to capture the
telephone numbers dialed. So how should capture devices be used
on e-mail, where they pick up more than just the telephone numbers?
Should the government get the deep link? The subject line? The issue
is hotly debated.
A prime reason for the oscillation between the hopelessly abstract
and the numbingly specific is that the authorities are charged with
two different tasks, and, to anyone of common sense, the balance
between liberty and order is different in each context.
One task is
the investigation of crimes such as the recent attacks. This is
a criminal case, and the normal principles apply — however
horrendous the crime, it is as important that the innocent not be
punished as that the guilty be called to account. Even here, however,
our principles begin to bend. What might be regarded as probable
cause for a warrant in the case of another crime, even a serious
one, is not necessarily the same as probable cause in this case,
as any sensible judge deciding on a warrant would recognize.
A second task
is a combination of the prevention of further attacks and conduct
of foreign affairs. We are at war, but we are having a problem figuring
out who with. It is the job of the security agencies to find out.
We also have good reason to believe that our foe is planning further
actions. Most of us would rather not die, and if capturing the deep
links on e-mails will save us, we would like to get the information,
and be damned to minutiae of civil-liberties law. As anyone who
did not go to law school understands immediately, prevention presents
different issues than does prosecution.
What one thinks
of any proposal depends on which function one has in mind. For example,
civil-liberties groups are appalled that the FBI wants information
on students who are from the Middle East or have had flight training.
In the context of prevention, collecting such information is a sensible
quick screen. But one's attitude changes if the effort turns into
a dragnet for minor criminal violations, or the beginning of systematic
surveillance.
Clearly, at
the moment we need to focus on prevention, but we need — and
lack — both legal doctrines and law-enforcement practices that
recognize the extraordinary nature of the situation, and that allow
some information to be collected and used only for prevention, or,
if used for prosecution at all, used only in the context of terrorism.
The first need
is for the government to recognize that prevention is indeed a different
and special function, a state of mind which is not so far evident.
For example, analogizing the antiterrorist effort to other criminal-justice
"wars," such as the War on Drugs, is a mistake. How can
one trust people who are indifferent to the distinction between
preventing terrorism and preventing pot, or who refuse to recognize
what a civil-liberties disaster that war is?
Nor has the
government recognized the importance of keeping the law-enforcement
community from using terrorism to expand its powers generally. The
first-draft antiterrorist bill would have expanded asset forfeiture,
which is already a cesspool of corruption, in all criminal cases,
regardless of the connection to terrorism. The draft would also
have made into special terrorist offenses some crimes that have
nothing to with terrorism, such as illicit computer entry or firearms
violations.
We also need
to focus on institutional competence. Anyone who has worked for
the government knows that every agency assumes its own competence
and dedication. All failures are due to insufficient power or money.
A crisis provides the chance to get more of both, immediately, and
old wish lists are promptly resurrected
This dynamic
is already operating. FBI personnel were aware of suicide bombings
in Israel, in possession of multiple reports of people connected
with terrorist cells taking flight lessons, fully informed of a
1995 plot to blow up a number of airliners, and even familiar with
the Tom Clancy novel is which a kamikaze pilot crashes an airliner
into the Capitol. Yet officials given a specific report from a flight
school that a man with known links to terrorists wanted lessons
on how to steer a 767, but not to take off or land, "had no
context in which his odd request made sense," according to
the Washington Post.
The bureau's
immediate response to the disaster is that it needs more driftnet
power to collect more information about e-mail, computer keystrokes,
or encrypted messages, and needs to shed irksome restrictions on
warrants and wiretaps. This is unpersuasive, when the agency cannot
coordinate and process what it already has.
Deep concern
about the basic competence of other agencies is also in order. The
FBI had Hanson but the CIA had Aldrich Ames. The CIA just revealed
that the head of its Cuban desk was a spy. The INS cannot account
for dozens of computers, including many holding secret information,
an announcement that tracks a similar confession by the FBI a few
months ago. The former head of the FAA gave the familiar "who
could have imagined it?" to the use of an airliner as a bomb.
Again, emergency
prevention powers may be needed; we are stuck with the organizations
we have, and prevention is urgent. But nothing long term should
be granted until there has been thorough organizational reform.
Any new power should be limited by time and use restrictions.
A focus on
prevention also highlights a need for error correction. For example,
it is clear that people of Middle Eastern descent, especially non-citizens,
will receive closer attention. This is common sense, not racial
profiling. If the IRA becomes active in the U.S., the Irish will
get special scrutiny.
We can fairly
ask those subjected to this to tolerate it. But there is a quid
pro quo. They must be treated courteously, efficiently, and apologetically,
not only because of the demands of human decency and democratic
values, but out of pragmatism. Middle Easterners are vital to the
struggle because of their special knowledge. Many are in the U.S.
because they prefer this society to that of their origin, and their
experience makes them acutely aware of the stakes.
Those who get
caught in the net unjustly should also be compensated generously
for any harm they suffer. If the government holds someone as a material
witness, all right — but pay his salary to his family. And
if it ruins his business, pay him for it. Continuing judicial review
of detention should ensure that investigators do not inhume their
mistakes in jails.
An interesting
parallel is Korematsu, the Supreme Court case upholding the
government's 1942 order that Japanese Americans leave the West Coast.
One can make a case that, contrary to all respectable opinion, the
case was rightly decided. But a large reservation is necessary.
Largely due to the dynamics of bureaucracy, the order was not rescinded
even when it became obvious to the most cretinous both that Japan
did not have the logistics to invade the U.S. and that any security
risks in the evacuee population had been identified. The evacuees
were not compensated for massive financial losses, and their welfare
became a low-priority during the war, which left many of them stuck
in internment camps.
These failures
do not fit into the formal categories of the law, so they are never
regarded as violations of civil liberties. All focus has been on
the original order, as if once that is found to be valid the legal
system has no further interest. But the subsequent failures, much
more than the original decision, are cause for national embarrassment.
A focus on prevention would emphasis that power need not be all
or nothing; its exercise can be made highly conditional on ameliorating
any injustices.
At a recent
discussion, one participant commented: "I hope all of you who
are so concerned about the details of civil liberties are aware
that we are about one incident away from having very few."
He is right, which makes it imperative that we hunt down and kill
every vapid cliché and get serious about protecting civil
liberty.
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