Taking Liberties: The War on Terror and the Erosion of American Democracy (40 page)

John Adams and the Federalists justified the draconian Sedition Act of 1798, which criminalized speech critical of the government, on the ground that spies and foreign agents inciting insurrection were jeopardizing the nation’s security.
²⁴
That controversial law, which the Republicans had opposed, expired at the end of Adams’s term and the political process offered recovery in two stages. When the Republicans won the next election, Thomas Jefferson promptly pardoned everyone who had been convicted under the Sedition Act and released those who were still serving sentences. Some forty years later, Congress repaid the fines collected under this Act and issued a committee report declaring the Sedition Act to have been unconstitutional, just as Virginia and Kentucky had thought at the time.
²⁵
The Alien Enemies Act of the same vintage (allowing detention or deportation of citizens or subjects of a nation at war with us), on the other hand, is still with us.

Change in our antiterrorism policies, as I have shown, did not follow the election of Barack Obama. It seems unlikely that our future presidents will be more sensitive to constitutional values than former Constitutional Law professors like Obama and Bill Clinton, both of whom have fully supported rights-restrictive antiterrorism measures. And it could well be forty years before Congress is ready to apologize to Abdullah al-Kidd for his unjustified arrest, or to revise the vague and threatening material support laws.

There are more reasons for pessimism. In other times, the wars that prompted emergency action ended, so there was a trigger to prompt consideration of whether to restore abridged rights. But there will never be an armistice with terror to inspire our return to normal, especially if the War on Terror is, as it was under the Bush Administration, perceived as a war on all terrorists—Iranians who support pro-democracy groups, Kurdish nationalists, and anti-Israel Palestinians alike—rather than only on Al Qaeda. And even after a finite war, true restoration of balance can be painfully slow. After World War II, for example, Congress reacted fairly promptly to authorize compensation for property lost by Japanese-Americans driven from their homes by our internment policy.
²⁶
But it was not until 1971 that Congress passed a statute prohibiting the future detention of Americans without congressional approval.
²⁷
And it was not until 1988 that President Ronald Reagan signed an act proclaiming the internments an injustice, and offering an apology and
reparations.
²⁸
It took actions by all three branches of the federal government as well as a commission to effect those corrections. President Gerald Ford had issued a presidential proclamation in 1976, in connection with the bicentennial celebration of the Constitution. In 1980, Congress followed up by establishing a blue-ribbon commission, which spent several years hearing from hundreds of witnesses and reviewing hundreds of documents before concluding, in 1983, that the internment decisions were due to “race prejudice, war hysteria and a failure of political leadership” rather than military necessity.
²⁹
And both Fred Korematsu and Gordon Hirabayashi, who had lost their cases in the wartime Supreme Court, brought new federal court cases during the 1980s in which they won reversals of their convictions (for disobeying an exclusion order and defying a curfew, respectively)—over four decades after the fact—so the courts also played a significant role in the national dialogue.
³⁰
Of course the
Korematsu
opinion itself, although in disrepute, was not actually overruled.

On some occasions, the Supreme Court has corrected its own course. But this too can be a painfully slow process, when it happens at all. During World War I and its aftermath, the Court had not been willing to reverse convictions for antiwar or anti-American speech, but after the war the Court gradually reformed its First Amendment doctrine to provide fuller protection for unpopular speech—although it then relapsed in the 1940s and 1950s in the face of the Communist scare. It took half a century before meaningful First Amendment protection of extreme or radical speech reached its high water mark.
³¹

Perhaps the most encouraging model we have is the Church Committee, the robust commission process that restored balance and the rule of law after Richard Nixon subjected Americans to excessive and unwarranted surveillance—quite speedily, by historical standards. Frederick A. O. Schwarz, Jr., who was counsel to the Church Committee, along with co-author Aziz Huq, tells the fascinating story of how several years of bipartisan effort led to a thorough study of the nation’s history of surveillance.
³²
As a result, Senators Frank Church and Charles Mathias reported that the United States had been deemed to be in an almost constant state of emergency since 1933 and identified about 470 examples of emergency power legislation that had remained on the books.
³³
Based on its study of history and bipartisan deliberations, the Church Committee attempted to move the country out of a perpetual state of emergency into a carefully considered rule of law. Schwarz and Huq see many parallels between that
committee’s work and the work of the 9/11 Commission, while ruing the fact that we never did internalize the lessons of the Church Committee well enough to avoid repeating the mistakes that committee tried to put behind us.
³⁴

My sketchy foray into history suggests that a bipartisan commission may have the best chance of rising above the politics that hamstring all three branches of government and inspiring reflection and perhaps change. The 9/11 Commission process was exemplary and some of its recommendations have made a difference, but its report is now over five years old. Will the innocent victims of the War on Terror have to wait for forty years, like the victims of the Sedition Act and World War II internment policies, before we are able to consider whether we have made any mistakes? Will inertia lead us into a second and perhaps third decade of War on Terror, or can we rise above fear and restore our democracy by initiating a process of reevaluation, as the 9/11 Commission itself recommended? Are we too deeply partisan to be able to launch a bipartisan effort?

The challenges are substantial, but we cannot afford to be daunted. Constitutional rights like the First Amendment freedoms of speech, association, religion, and access to the courts, Fourth Amendment privacy rights, due process, and equal protection rights should not just be written off as regrettable casualties of a metaphorical War on Terror. In this book, I have offered an account of how seriously we have jeopardized our rights and our democracy by going along with post-9/11 emergency measures that are supposed to be keeping us safe. I have also offered reasons to question whether some of those policies are misguided and even counterproductive. I do not offer a particular program for how to combat terrorism. Instead, my solution is process-based, like so much of the Constitution. My chief goal is to convince Americans to play the role the Constitution relies on us to play—to inform ourselves and take part in the serious policy debates we need to have, rather than passively trusting our elected leaders to make decisions for us. I hope that focusing attention on the costs of our antiterrorism strategies will help to inspire a reexamination of the policies themselves, greater public pressure on the president and Congress to restore our rights, greater expectations of the courts, and greater determination to preserve our rights in the future.

The Constitution, as our foundational document, is a lot like a marriage contract. Sometimes we may be tempted by strong emotions, like
fear, to cheat on our commitments to our fundamental principles. But if we want to keep our privacy, our freedom of speech and thought, and our right to talk back to the government, we need to recommit ourselves to resisting that temptation and doing our own part to protect and defend the Constitution. After all, any worthwhile relationship takes work.

Notes

Introduction

1
.  
RON SUSKIND, THE ONE PERCENT DOCTRINE SINCE
9/11 52 (New York: Simon & Schuster, 2006).

2
.  Uniting and Strengthening America by Providing Adequate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act), Pub. L. No. 107–56, 115 Stat 272 (2001).

3
.  Senator Russ Feingold explained his reasons for voting against the Patriot Act:

Of course, there is no doubt that if we lived in a police state, it would be easier to catch terrorists … But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.

147 Cong. Rec. S10990-02, S11020 (daily ed. Oct. 25, 2001) (statement by Sen. Feingold).

By contrast, Senator Tom Daschle, the Democratic majority leader largely responsible for pushing through the Patriot Act, said “we made the best judgment we could, taking into account the very delicate balance between civil liberties and law enforcement that we had to achieve in bringing a bill of this complexity to the floor … all of those involved did a terrific job under the most difficult of circumstances.” 147 Cong. Rec. S10547-07, S10574 (daily ed. Oct. 11, 2001) (statement by Sen. Daschle).

4
.  
NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S.,
9/11
COMMISSION REPORT
394–95 (Washington, DC: USGPO, 2004),
http://www.gpoaccess.gov/911/pdf/fullreport.pdf
.

5
.  President Barack Obama, inaugural address (Jan. 21, 2009),
http://www.whitehouse.gov/the__press__office/President__Barack__Obamas__Inaugural__Address/
.

6
.  Transcript of Oral Argument at 47, ll. 17–22, Holder v. Humanitarian Law Project, __ U.S. __, 130 S. Ct. 2705 (2010) (No. 08–1498) (argued Feb. 23, 2010).

7
.  Editorial,
Breaking a Promise on Surveillance,
N.Y. TIMES,
July 29, 2010,
http://www.nytimes.com/2010/07/30/opinion/30fri1.html?__r=1
.

8
.  
See
Marc Ambinder,
Clash with Congress: Obama Threatens Veto of Intelligence Funding Bill,
THE ATLANTIC,
July 8, 2009, 4:47
P.M.,
http://www.theatlantic.com/politics/archive/2009/07/clash-with-congress-obama-threatens-veto-of-intelli-gence-funding-bill/20921/
.

9
.  Press Release, U.S. Dep’t of Justice,
Attorney General Establishes New State Secrets Policies and Procedures
(Sept. 23, 2009),
http://www.justice.gov/opa/pr/2009/September/09-ag-1013.html
.

10
.  Memorandum to the Heads of Exec. Dep’ts, Agencies & Dep’t Components from Eric Holder, Attorney Gen., U.S. Dep’t of Justice, Policies and Procedures Governing Invocation of the State Secrets Privilege 1 (Sept. 23, 2009),
http://www.justice. gov/opa/documents/state-secret-privileges.pdf
.

11
.  
PLATO, THE REPUBLIC
2.359a–2.360d (Jowett trans., New York: Vintage Classics 1991).

12
.  In re Nat’l Sec. Agency Telecomm. Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. Mar. 31, 2010).

13
.  
See
Susan N. Herman,
Patriotic Dissent,
45
WASHBURN L.J.
21 (2005).

14
.  There have been sporadic complaints of groups being targeted based on their viewpoints (antiwar, pro-Arab, pro-Palestinian, or socialist) during Obama’s watch, but most of the incidents cited have occurred in Fusion Centers, where state officers supplement federal agents in counterterrorism roles.
See Spying on First Amendment Activity-State-by-State,
ACLU (Sept. 29, 2010),
http://www.aclu.org/spy-files/spy-ing-first-amendment-activity-state-state
;
More About Fusion Centers,
ACLU (June 25, 2010),
http://www.aclu.org/spy-files/more-about-fusion-centers
.

15
.  
See
DIR. OF THE ADMIN. OFFICE OF THE UNITED STATES COURTS, REPORT ON APPLICATIONS FOR DELAYED-NOTICE SEARCH WARRANTS AND EXTENSIONS
(2009),
http://big.assets.huffingtonpost.com/SneakAndPeekReport.pdf
.

16
.  J. M. Kalil & Steve Tetreault,
PATRIOT ACT: Law’s Use Causing Concerns,
LAS VEGAS REVIEW-J.,
Nov. 5, 2003,
http://reviewjournal.printthis.clickability.com/pt/cpt?action=cpt&expire=&urlID=8164533&fb=Y&;partnerID=565
.

17
.  
GEOFFREY R. STONE, PERILOUS TIMES
(New York: W.W. Norton 2004);
see also
GEOFFREY R. STONE, WAR AND LIBERTY
(New York: W.W. Norton 2007).

18
.  Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).

19
.  
Poll Finds Trust of Federal Government Runs Low,
CNN
(Feb. 25, 2010, 8:38
P.M.
),
http://www.cnn.com/2010/POLITICS/02/23/poll.government.trust/index.html
.

20
.  
See
Chapter 11
, notes 25–28 and accompanying text.

21
.  
See
STONE, PERILOUS TIMES,
supra
note 17, at 222–26.

22
.  
BENJAMIN FRANKLIN, AUTOBIOGRAPHY OF BENJAMIN FRANKLIN
104 (New York: Macmillan 1914).

23
.  
GEORGE LAKOFF, DON’T THINK OF AN ELEPHANT
(White River Junction, VT: Chelsea Green 2004).

24
.  
Humanitarian Law Project,
130 S. Ct. 2705 (2010).