On October 26, President Bush signed into law an antiterrorism package dismantling many privacy protections that Americans had long taken for granted. Although it was presented as a “compromise” from what the Administration proposed days after September 11, privacy advocates argue that the only real compromise involves Americans’ civil liberties. Many of the provisions are not limited to terrorism investigations but apply to all criminal investigations. The bill allows law enforcement agencies to search homes and offices without notifying the owner for days or weeks; it also overrides state and federal privacy laws, allowing the FBI to compel disclosure of any kind of records, including sensitive medical, educational and library borrowing records–merely by claiming they are connected with an intelligence investigation. While some of the provisions “sunset” or expire in 2005 unless renewed by Congress, the sunset doesn’t apply to ongoing investigations, which means that in many cases the measures will be here to stay.
Now that the antiterrorism laws have passed, however, the civil libertarian community is seeking to reframe its agenda in ways that acknowledge the “new normalcy.” Stock arguments that the government can do better with the tools it has don’t seem to comfort a terrified public. According to polls, the public is now more willing than ever to give up rights in the name of safety. Government warnings of more terror attacks can only serve to heighten that motivation. Meanwhile, civil libertarians insist that terrorism can be fought without unduly affecting liberties–leaving them faced with the question of what measures they believe would be both effective and noninvasive. In the following interviews, leading experts grapple with these difficult issues, searching for a vision of how the government can best guarantee both liberty and security.
Alan Dershowitz
Professor at Harvard Law School.
There’s a case for a very limited national identity card–one that would include only name, Social Security number, photograph, address and either a fingerprint or retinal print associated with a chip on the card. It would eliminate much of the excuse law enforcement has for racial profiling. That doesn’t mean that Arab-Americans wouldn’t be asked to show their cards more often. But showing the card would eliminate the kind of harassment that people have experienced on planes, including being asked to leave. I do not believe that an American citizen in the year 2001 has the right to anonymity. Entering the country is in some respect a privilege. I wouldn’t give an alien any fewer rights such as free speech, but I think that if you come to this country and are asked to carry a card and identify yourself, it is not an enormous burden.
Two other measures I have changed my mind on: One is the roving wiretap. Directing the wiretap against the individual rather than a specific phone is more consistent with the Fourth Amendment. After all, we civil libertarians have long said that the Fourth Amendment protects people, not places. You are more likely to be innocently heard if there is a tap against a phone then if there is a tap against a person. Let’s assume that my phone is the subject. Lots of people use that phone. But if the tap is only authorized to record my phone conversations and I am the subject of a probable-cause warrant, then I think it is actually more protective. The third thing is, which is much more controversial, facial-recognition technology. It will make mistakes, undoubtedly, but far fewer mistakes than racial profiling. I would much rather have facial-recognition technology set up at the World Series than some local cop picking out who looks Arabic or Islamic. I wouldn’t permit it to be used on any street corner, as they do in England. But in places where you are authorized to ask for ID, like entrance to government buildings and stadiums, facial-recognition technology is not something that civil libertarians should be concerned about.
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Nadine Strossen
President of the American Civil Liberties Union.
It is not at all clear that the failure to prevent the catastrophe on September 11 was because of inadequate investigative powers. The FBI already had two people on its watch list. The problem was in coordination and implementation. Why should we be surprised? It’s not lack of power but ineffective use of the powers we have. If there should be any new measures they should be maximally effective in enhancing safety and national security and minimally intrusive. There are a number of measures in aviation security that nobody opposes–securing the cockpit door, luggage matching (you have to get on the plane if your luggage is). And everybody believes there should be adequate training and supervision for airport employees. There has to be some better security clearance in terms of baggage handlers and cleaning crews. This is in contrast to the use of facial [recognition] technology for all passengers, which hasn’t been officially proposed yet but some people say it should be for all people in airports. This would be maximally intrusive. In terms of effectiveness this wouldn’t do anything at all. The government itself has conducted surveys that say it has a 43 percent false negative rate–so there is almost a 50/50 chance a known terrorist would be allowed to board. He could be advised as to how this technology could be thwarted. By putting on sunglasses a terrorist would be throwing it off kilter. I would oppose it because it would be ineffective and intrusive.
James X. Dempsey
Deputy director of the Center for Democracy & Technology.
The government should be focusing on things like airport security, paying the screeners a decent wage, insuring use of the bomb-screening technology on checked luggage. It is technology that is available but underutilized. We need to do a far better job of improving the safety of nuclear plants and chemical plants, along the lines of the recent agreement we signed with Uzbekistan to clean up the island site where the Soviets dumped barrels filled with anthrax–there are many others of those sites unguarded. We also need to establish tighter controls on toxins in this country. We still do not have the regulatory scheme in place to control the manufacture, transport and possession of dangerous chemicals. We have a complicated, patchy system. What is missing is not the criminal provisions but the regulatory ones. And there are ways to improve vastly the use of information in the visa and immigration process that have nothing to do with the political or associational criteria that in the past have been used to exclude critics of US foreign policy. The overseas offices that grant visas still don’t have computerized access to the photographs of those who apply for visas. If a passport is stolen or forged, an immigration official has no way of knowing whether it was issued to a person other than the one who presents it.
The final thing I would say is that the expanded surveillance powers are not costless from a security standpoint. They are likely to make the counterterrorism efforts more inefficient because they are less focused and they do not have the oversight and responsibility for judicial review. This is one of the ways in which civil liberties, rather than being at odds with security, actually promote security by keeping the government focused and insuring more reliable decision-making in investigations. I think officials are doing this because it’s the easy route. They are doing it because in this moment of crisis they can’t break out of the mindset that more surveillance is better. They can’t break out of the mindset that judicial controls are nuisances. They can’t afford from a self-protective perspective to engage in a real analysis of what went wrong in the days and weeks leading up to September 11.
Robert Litt
Former Justice Department official who worked on national security matters; now a partner at Arnold & Porter, a law firm in Washington, DC.
I am not of the school that believes that the terrorism bill that has been passed is a disaster for civil liberties. I don’t think it is a perfectly drafted bill, and there are some things that aren’t perfect, but on the whole it is not the end of the world. Congress has done a whole lot worse over the years than this piece of legislation–the Anti-Terrorism and Effective Death Penalty Act of 1996, which eviscerated habeas corpus, was a far worse bill in the long run than this one. I think some of the principal problems we have in fighting terrorism today are structural. The United States gets a large amount of intelligence information that never gets adequately analyzed because we are overwhelmed by the volume. We need more people to listen to these wiretaps, to translate them, to analyze them. I also think the law enforcement and intelligence agencies have a lot of work to do to build relationships with the broader society, to lessen the hostile attitude that many people have toward them. Much of the high-tech community views the law enforcement and intelligence communities as adversaries or threats, and that is counterproductive. The programmers and people running the companies need to be convinced to work with government and help it out. That’s also going to require a change of attitude on the law enforcement side, particularly the FBI. It has to change its approach from saying, “You’re going to do it our way because we’re the FBI.” On both sides, there has to be a more cooperative relationship. I don’t think all kinds of information should be divulged wholesale to the FBI. But I think citizens ought to take a more tolerant attitude to law enforcement–which after all is trying to protect us. As long as there is a sense that law enforcement is out to do evil, it is going to be difficult to accomplish that.
Jessica Stern
Harvard University lecturer in public policy. As a former director at the National Security Council she worked on policies to reduce the threat of nuclear smuggling and terrorism.
We need to improve public surveillance of emerging, re-emerging or antibiotic resistant diseases not just in the United States but also around the world. This is really important as a way to distinguish natural outbreaks of disease from bioterror, but it also improves public health around the world. I think the area of public health monitoring is a very important issue. American physicians must take more seriously the need to inform the Centers for Disease Control when they encounter reportable diseases. In addition, there must be better coordination between veterinarians and physicians and the CDC. Remember what happened with the first outbreak of West Nile virus in New York City–a number of birds were dying, and a veterinarian tried to get in touch with the CDC and didn’t get anywhere. The World Health Organization has said that it often learns about outbreaks through media reporting rather than more regularized communication. The problem is significantly worse in the Third World. There is a tendency to think that efforts to improve public health monitoring are a form of foreign aid. But it’s really not. Infectious diseases don’t respect borders.
Also, in the past in the United States, it was far too easy to acquire cultures. We know that in the past Iraq was able to acquire cultures of anthrax and even West Nile virus. I think the regulations could be tightened further still. There are approximately 1,500 culture collections worldwide. New US regulations require that both the shipper and the receiver of the culture be registered. A culture collection can’t just send a package to anyone who requests it. But that is not true internationally. The head of the American Type Culture Collection, Raymond Cypress, urged the World Federation of Culture Collections to adopt similar rules to those now required by the United States. But it refused. If the anthrax attacks continue there might be efforts to monitor individuals and domestic antigovernment groups considered capable of using or willing to use biological agents. That could infringe on civil liberties. For example, we can imagine the government feeling the need to track Christian Identity groups that have shown an interest in biological agents in the past. In the current environment the government will undoubtedly feel the need to place a premium on public safety, possibly at the expense of civil liberties.
Floyd Abrams
Co-counsel to the New York Times in the Pentagon Papers case, now a partner at Cahill Gordon & Reindel in New York. Remarks excerpted from an October 2 speech at Columbia University.
In a new world in which foreign terrorists–dedicated to our destruction, suicidal in behavior and with possible access to modern weapons–imperil us, I personally favor much of the legislation proposed by Attorney General Ashcroft. Not all, of course. Everything hasn’t changed. All the new rules permitting more wiretaps more easily, more incarcerations of terrorism suspects for longer times more easily, less legal protection for immigrants must, I think, be strictly limited to genuine terrorism cases. Terrorism must be defined far more narrowly than in the Ashcroft proposal. Life sentences, it should not be necessary to say, cannot be meted out without trials. All the new laws should contain sunset provisions that would require Congress to revisit them when (hopefully) the situation is less of an emergency and when there is time enough to consider them with greater care and after enough experience that we can assess just how much abuse (there will be abuse) we can expect from law enforcement officials.
But we must understand that we must take steps that will change our way of life in a grim, if necessary, direction. Allowing more wiretaps on less of a showing is dangerous business. Not allowing them is, I think, more dangerous still. Whatever we do in the privacy area, however, and however close we come to reaching the limits imposed by the Fourth Amendment and due-process interests, we should be especially careful to give no ground on First Amendment issues. In fact, the more ground we give on privacy, the more we turn over new power to government, the more we need the closest scrutiny by the press of the behavior of the government. And on other topics as well. As the current situation develops in ways we cannot now predict, there will be abuses of speech by the government as well as of the new investigative tools it is seeking; there will be punishment by nongovernmental actors of unpopular speech that will not, for that reason, violate the First Amendment but certainly violate First Amendment values.
It would not surprise me to see the rebirth of First Amendment-threatening legislation. We may see new efforts to amend the Bill of Rights by permitting the criminalization of the burning of an American flag. How that would terrify would-be terrorists! We may, as well, see new efforts to enact legislation (previously vetoed by President Clinton) making any leak of any classified information criminal. So much, then, for any future Pentagon Papers!
…There will, in short, be enormous pressure on free speech at the very time we need it most.
