Can we be secure and free?

Public Interest, Spring, 2003 by Thomas F. Powers

Yet the debate has also been shaped by the unusual character of this war and the unique task facing the government. Because the enemy is a terrorist organization operating in part on American soil, the response is unavoidably at least as much a matter for law enforcement as for the military. Because the terrorists have proven themselves capable of striking in the face of less vigorous and less coordinated policing efforts, some greater, more tightly orchestrated effort is manifestly required. That the government's investigation targets Arabs and Muslims cannot but make Americans uncomfortable. Yet this emphasis reflects certain undeniable facts concerning the identity of the participants in the attacks of September 11 (and not racist or ethnic or religious prejudice, which the administration has indeed made a concerted effort to declaim). Since information can be misused with great potential costs, the government has not surprisingly adopted a policy of heightened secrecy. Likewise, military tribunals fulfill specific needs imposed by the current conflict, for which civilian courts were not designed.

This is not to suggest that every element of the government's effort is therefore sound. One can reasonably ask questions about every detail of these measures. But the general shape of the government's response is a logical result of September 11, and would have followed regardless of who led the effort. Whatever one thinks about the new set of challenges to civil liberties in America, these challenges are not the result of some paranoid "authoritarian" agenda, pursued by government officials for its own sake.

Congress and the courts weigh in

Evidence for the reasonableness of the new policies is to be found in the support garnered for them in Congress and the courts. On the whole, members of Congress have taken an aggressive stance in authorizing new government powers to fight the war on terror. It is true that Senate Judiciary Committee hearings on military tribunals and detentions held in November and December of 2001 prompted some revisions to the rules governing military tribunals. Similarly, Operation TIPS and (for now) the Pentagon's Total Information Awareness program have been blocked by Congress. But more striking is the overwhelming support Congress gave to both the USA PATRIOT Act (which passed in the Senate 98 to 1 and in the House 337 to 79) and the creation of the Department of Homeland Security (passing in the Senate 90 to 9 and in the House 299 to 121). The wide-ranging debate in Congress over extraordinary detentions and military tribunals has proven the exception rather than the rule. This may change if civil liberties issues be come increasingly politicized, but for now the reaction from within Congress has been tame compared to the claims of civil libertarian activists.

Similarly, in the judiciary, several lower court decisions striking down government policies in the name of protecting civil liberties gained wide publicity, but almost all of these have been overturned on appeal. The Foreign Intelligence Surveillance Court issued a rare ruling that seemed to call into question several important provisions of the USA PATRIOT Act, only to be reversed by a ruling of the secret Foreign Intelligence Surveillance Court of Review. A demand for information on detainees held in New Jersey was upheld at the trial level but struck down by the state court of appeals. The power of the government to freeze accounts and seize records of groups suspected of having ties to terrorists was upheld in federal court. A challenge to the government's authority to detain "enemy combatants" without prisoner-of-war status at Guantanamo Bay was dismissed. Overturning a lower court ruling, the U.S. Court of Appeals for the Fourth Circuit upheld the government's indefinite detention of U.S. citizen and d esignated "enemy combatant" Yaser Hamdi. In the Jose Padilla case, in something of a compromise, a federal judge in Manhattan ruled that the government may hold a U.S. citizen indefinitely without charge as an "enemy combatant" but that the detainee has a right to an attorney. The U.S. Courts of Appeal for the Third and Sixth Circuits have issued contradictory opinions over whether immigration deportation hearings may be closed to the public (the Supreme Court may eventually decide the issue). The only complete victory for civil libertarians in the courts thus far is a federal court ruling ordering the government to release the names of those detained as part of the investigation of the events of September 11, a ruling that is currently under appeal.