The killing of Osama bin Laden and other high-level Al Qaeda leaders has helped persuade President Obama to withdraw 30,000 troops from Afghanistan by next summer. According to the president, the “tide of war is receding”—at least in Afghanistan. But what about here at home? It’s been almost ten years since Al Qaeda’s attacks on the World Trade Center and the Pentagon. The government responded by adopting, in short order, extraordinary measures to prevent another attack. But if the tide of war is receding, shouldn’t we be reconsidering the sacrifices in our liberties that we made to fight that war?
In fact, there seems to be little recognition that, on the home front, the tide of war is receding. In May Congress reauthorized, for four more years, three controversial provisions of the Patriot Act, rejecting all proposals to add safeguards. The provisions permit the government to obtain “roving” wiretaps without identifying the person or the phones to be tapped; demand records from libraries and businesses without establishing any reason to believe the target is involved in criminal, much less terrorist, activity; and use surveillance powers initially restricted to agents of foreign governments or terrorist organizations against “lone wolves” not affiliated with any such group or government.
Lost in the muted debate over these three provisions was any discussion of still more troubling Patriot Act authorizations, which were initially enacted without “sunset” clauses and have therefore never been reconsidered. These include ideological grounds for excluding or deporting foreign nationals for association with terrorist groups, expansively defined to encompass virtually any group of two or more that has ever used or threatened to use a weapon against person or property. They also include a provision that makes it a felony to advocate for human rights and peace if you do so with a “foreign terrorist organization.” (The Supreme Court upheld that statute against a First Amendment challenge last summer, in a case I argued.) And they include the authority to rely on secret evidence to freeze the assets of American charities simply by claiming they are “under investigation,” without any finding of wrongdoing. (In another case I am litigating, a federal court has declared that procedure unconstitutional, but the Obama administration continues to defend it.)
In June the New York Times reported that the FBI is about to relax yet again the rules that govern its national security investigations. Those guidelines, promulgated in 1976 in response to widespread abuses in spying on civil rights and peace groups, have been watered down numerous times, before and after 9/11. Now, according to the Times, Attorney General Eric Holder is set to loosen the reins even further. The new rules will allow FBI agents to rummage through citizens’ trash, conduct searches of computer databases and repeatedly use surveillance squads to track people without any suspicion of individual wrongdoing or court approval.