Can we be secure and free?

Public Interest, Spring, 2003 by Thomas F. Powers

That this heightened rhetoric, raised to the level of constitutional principle, has taken hold in a time of war is unfortunate. But because the opposition between liberty and security rests in fact upon an unwarranted dichotomy, we may be able to find more common ground than the current debate would lead us to believe exists.

Homeland security measures

Every war brings with it, according to its particular circumstances, its own distinctive set of civil liberties challenges. The present conflict has posed five main areas of controversy: due process issues, extraordinary detention, the civil rights of noncitizens, government secrecy, and the treatment of terrorist captives outside the United States.

The first and greatest source of concern among civil libertarians arises from the expansion of police powers that make it easier for government agencies to conduct surveillance, use wiretaps and searches, obtain access to personal records, and track and question designated groups. As a result, the current civil liberties debate is distinctive for its novel focus on issues related to due process.

Expanded scope for surveillance is an especially important feature of the new effort. The USA PATRIOT Act (the acronym abbreviates "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") gives police agencies new authority to conduct expanded telephone and Internet surveillance and loosens 1970s restrictions on the ability of the C.I.A. to engage in domestic surveillance. Under new Department of Justice guidelines that employ a broad definition of terrorism, the F.B.I. may now monitor religious and political groups without specific evidence of wrongdoing (i.e., without "probable cause") in the name of national security. "Operations TIPS" (Terrorist Information and Prevention System), which was debated and ultimately halted in Congress (in an effort notably led by then House Majority Leader Dick Armey), would have encouraged civilian surveillance of private persons (its detractors claim it was designed to circumvent the due process restraints ordinarily imposed on the police). Another effort stopped by Congress (at least for the moment) is the Pentagon's "Total Information Awareness" data-mining program, which would examine a variety of public and private databases to search for evidence of terrorist group activity. This effort would follow provisions of the USA PATRIOT Act that make it easier for law enforcement agencies to gain access to various kinds of personal records in the hands of third parties such as schools, libraries, bookstores, doctors, and employers.

The power of the police to track, monitor, and question individuals has also increased. Plans to fingerprint and track electronically Arab and Muslim noncitizens have been announced by the Department of Justice. The new Department of Homeland Security has plans to standardize state drivers' licenses in a move that will, according to critics, effectively create a new "national identity card." The police have also been authorized to question thousands of Arab and Muslim men, without "individualized suspicion" of wrongdoing.