At War With Liberty

As expected, September 11 has prompted an expansion of law-enforcement powers at almost every level. And who would have it otherwise? For those of us who live and work in Manhattan, 9-11 was not a single horrific day but an extended nightmare. For weeks, kiosks, store windows and parks displayed fliers by the thousands, pleading for information about loved ones still missing. National Guard units seemed to be everywhere. Day after day, the air -- gray and acrid -- carried the smell of burning flesh.

No, the "war" metaphor is not just convenient political spin. And despite shameless hyping of "sleeper cells" and color-coded threat levels, no responsible person can dismiss the danger of devastating future attacks. Actions to strengthen law enforcement are not simply the product of panic or paranoia.

But the particulars are troubling, and worse. Predictably, there has been overreaction and political grandstanding. More surprising is the neglect. The administration has inexcusably swept aside urgent security needs while it continues to win public acclaim for toughness by targeting and scapegoating civil liberties.

An accounting of the state of our liberties should begin with the positives. To his credit, the president has preached tolerance and respect for our Muslim neighbors. Unlike previous wartime governments, his administration has not sought to prosecute dissenters for political speech, has not attempted anything comparable to the internment of Japanese Americans during World War II and (technically, at least) has not tried to suspend the writ of habeas corpus.

But to measure performance by these standards is to set the bar terribly low; these were sorry historical embarrassments. And 9-11 has already produced several comparable missteps. The administration's efforts to stymie habeas corpus rival the civil-liberties low points of prior wars, as does Bush's determination (wholly without precedent) to hold American citizens indefinitely on disputed charges without affording them a trial in any forum, civil or military. Also without precedent are the oddly imbalanced means chosen to fight this battle. Never before in American history has an administration stinted on many homeland- and national-security expenditures and made tax cuts its top priority at a time of war. Conventional wisdom about striking a balance between liberty and security obscures the fact that responses to 9-11 are deeply flawed from both perspectives.

Surveillance and Privacy

The USA PATRIOT Act, passed in October 2001, expanded government surveillance powers in multiple directions. Investigators won new authority to track Internet use and to obtain previously confidential business and educational records. Prosecutors gained access to the broad search and wiretap powers of the Foreign Intelligence Surveillance Act. The Department of the Treasury expanded its authority to require banks, brokers and other businesses to report cash transactions and "suspicious activities," which include any transaction that differs from ones the customer typically conducts. Though the Department of Justice created a furor with its proposal to encourage voluntary snooping by private citizens, the Treasury Department regulations require private citizens and businesses to become eyes and ears for the government.

Many Americans are ready to sacrifice these sorts of privacies to obtain any nugget of information about al-Qaeda plans. Nonetheless, the rollback of privacy rights has three flaws that should trouble us all. First, worries about terrorism provide no reason to expand law-enforcement power across the board. Yet FBI and Treasury Department agents can use most of their new powers to investigate allegations of prostitution, gambling, insider trading or any other offense. There is no excuse for exploiting 9-11 to intrude on privacy in pursuit of these unrelated goals.

Second, accountability measures, though neglected in the rush to pass the PATRIOT Act, need not impair the usefulness of the new powers but, if well designed, would actually enhance them. The FBI's "Carnivore" system for spying on e-mail, for example, desperately needs procedures to preserve audit trails and ensure the accountability of agents who have access to it.

Finally, additional information is useless unless our agencies are able to make sense of it. It's now well known that before 9-11, the FBI and the CIA had important clues about the plot in hand, but as one FBI agent put it, "We didn't know what we knew." Because a large part of what we lack is not raw data but the ability to separate significant intelligence from "noise," pulling more information into government files may aggravate rather than solve the problem. Even before 9-11, Treasury Department officials complained that the staggering volume of reports they received -- more than a million every month -- was interfering with enforcement. Absent a substantial infusion of resources (which the administration has failed to provide), powerful new surveillance tools can give us only a false sense of comfort.

Unleashing the FBI

Last May headlines featured for days the startling news that in July and August 2001, agents in Minneapolis and Phoenix, Ariz., had urged investigations of Zacarias Moussaoui and the flight schools, only to be stifled by FBI headquarters -- an enormous blunder. In response, Attorney General John Ashcroft called a press conference to denounce "bureaucratic restrictions" that were preventing FBI agents from doing their jobs.

The rules he had in mind grew out of extensive FBI abuses in the 1950s and 1960s. Free to pursue random tips and their own hunches, agents back then intimidated dissidents, damaged reputations and produced thousands of dossiers on public figures, private citizens, political parties and social movements. By 1975, FBI headquarters held more than half a million domestic intelligence files.

Such sprawling dragnets are as inefficient as they are abusive. Rules to rein them in were adopted in 1976 by President Gerald Ford and have been reaffirmed by every president since. Nonetheless, Ashcroft ridiculed these guidelines as absurdly restrictive. He said -- incorrectly -- that the rules barred FBI agents from surfing the Internet and even from observing activities in public places. He announced that he was solving this problem by allowing FBI agents to operate with much less supervision.

The civil-liberties community responded with outrage. But far from hurting Ashcroft's popularity, the criticism reinforced his intended message: that defendants' rights had hobbled law enforcement. The failure to pursue the flight-school leads was in effect blamed on the American Civil Liberties Union, and the Justice Department presented itself as taking firm, corrective action.

What actually occurred was rather different. One set of guidelines the attorney general relaxed governs investigations of "general crimes" -- gambling, theft and other offenses not related to terrorism. The other guidelines he loosened govern investigations of domestic terrorist groups. Unnoticed in the brouhaha, the rules governing international terrorism cases -- the ones that apply to al-Qaeda -- weren't affected by the changes at all.

Behind the screen of this public-relations maneuver, damage was inflicted in several directions. Public frustration with central oversight was understandable under the circumstances, but none of the guidelines, even the more restrictive domestic regimes, impeded the kinds of investigative steps the Minneapolis and Phoenix agents had urged. What the field offices needed was better supervision, not less of it. Yet Ashcroft's actions obscured responsibility for FBI missteps, and instead of censure, the FBI was rewarded with greater discretion. As in the case of the PATRIOT Act, fear of terrorism offered an occasion for bait and switch: The guideline revisions don't in any way address the al-Qaeda threat that preoccupies the public, yet they leave us with heightened risks to civil liberties and much less effective management at the FBI.

Detentions and Secrecy

In the months following 9-11, federal agents arrested approximately 1,200 foreign nationals. Hundreds -- the precise number is unknown -- were held for months before being cleared and released; others remain in detention, ostensibly awaiting deportation. Courts are still sorting through the many issues the detentions pose.

Particularly troubling is the extraordinary secrecy surrounding these sweeps. The government has refused to release the names of any of the detainees. Individuals charged and afforded immigration hearings find those hearings closed to the press and even to their own families.

The government's justifications for secrecy are revealing. Secrecy, Ashcroft stated, is necessary to protect the privacy of detainees. Because many of them desperately wanted their names made public -- so that aid organizations and lawyers could contact them -- and because the Justice Department could have afforded secrecy to detainees who requested it, the privacy claim was painfully disingenuous. In litigation, Justice Department lawyers added the argument that releasing the names of terrorists would give the terrorists' cohorts clues about the progress of the investigation. This "roadmap" argument, though not entirely frivolous, is embarrassingly thin. Because all detainees have the right to make phone calls, and because gag orders have not been imposed on their lawyers and family, detainees who really are terrorists can easily signal their confederates.

Secrecy across the board, without any obligation to present case-specific reasons for it in court, has less to do with the war on terrorism than with the administration's consistent efforts, firmly in place before 9-11, to insulate executive action from public scrutiny. The cumulative effect of these efforts is an unprecedented degree of power -- an attempt simultaneously to cut off the right to counsel or judicial review and any ability of the press to report what happens to individuals arrested on U.S. soil.

The Assault on Habeas Corpus

Jose Padilla, the so-called dirty bomber who allegedly planned to explode a bomb laced with radioactive material, was arrested in May 2002 at Chicago's O'Hare Airport and held for a month as a material witness. Counsel was appointed for him, and he was due to be brought to court on June 11. Instead, two nights before that date, President Bush decided that Padilla was an "enemy combatant," a finding that the Justice Department tenaciously argues cannot be reviewed by any federal judge.

That night, without notice to his court-appointed counsel, Padilla was taken from federal detention in Manhattan, put on a military plane bound for South Carolina and thrown into a Navy brig. That was June 9, and Padilla hasn't been heard from since. The government has refused to let him speak to the press or to his own attorney, and has done everything in its power to deny him access to the courts.

Enemy infiltrators have posed acute threats to public safety before, notably during the Civil War. Lincoln, a straightforward man, responded by suspending the writ of habeas corpus.

That is not the Bush administration style. When Padilla's lawyer, Donna Newman, tried to file a habeas petition on her client's behalf, the government suggested no need to suspend the writ. Its argument was the "narrow" one that the Padilla petition was invalid because he hadn't signed it. Having deliberately blocked all contact between Padilla and the outside world, the government told the court that a valid habeas petition required his signature, that Newman couldn't sign for him (how do we know that Padilla still wanted her to obtain his release?) and that his own lawyer had no standing to ask the court's help because she had no "significant relationship" with him. Federal Judge Michael Mukasey ultimately dismissed these arguments as frivolous. He ruled that Newman had to be granted access to her client and that he would review the "enemy combatant" designation to be sure it was supported by "some evidence."

Mukasey's decision was announced on Dec. 9, yet Padilla remains incommunicado. As of early February, the government was continuing to find new reasons why Newman should be denied all contact with him, though Judge Mukasey, losing patience, probably will insist that a visit be permitted soon. After eight months (and counting), Padilla will eventually get to see his lawyer, and the judge will decide whether "some evidence" supports the detention.

The New York Times and The Washington Post praised Mukasey for his courage in standing up to the government. But we should take little comfort from his decision. Detention (incommunicado, to boot) has continued for more than eight months without any judicial review. Normally, detention without a hearing becomes unconstitutional after 48 hours.

More important, what's left of the writ of habeas corpus? Paradoxically, Padilla was lucky because the administration initially treated him as a material witness and a judge appointed counsel for him. Next time the government will just send the detainee straight to the Navy, without stopping first in a federal court. The Navy won't let him communicate with anyone in the outside world, and there won't be any Donna Newman to file a habeas petition for him. The only way to get a case like that before a judge would be for a family member to claim standing. That should work, though this Justice Department seems seriously capable of litigating whether a detainee has a "significant relationship" with his mother. There is also a less technical problem: the secrecy policy. If the government detains someone who isn't regularly in touch with his mother, she may not know that he has been locked away indefinitely in a Navy brig.

The other worry in Mukasey's decision, for any case that gets to court, is the standard of review: "some evidence." The charge against Padilla is based on a Pentagon affidavit reporting tips from unidentified informants who are unavailable for cross-examination. That's obviously not proof beyond a reasonable doubt. It's not even probable cause sufficient to support a routine wiretap, as the affidavit gives no basis for assessing the informants' reliability. But there is some evidence.

If the Supreme Court upholds the "some evidence" standard, it won't matter whether detainees get to file habeas petitions. An unsupported tip from a confidential source is still some evidence, and that will be all it takes to require deference to a president's finding. That finding of enemy combatant status, in turn, is enough in the administration's view to support detention for the duration of this conflict, without any trial at all.

The government says its approach is rooted in its need to continue incommunicado interrogation, for an indefinite period, in order to find out what Padilla knows. If he hasn't talked at this point, after eight months of interrogation, it's hard to believe another eight or 10 months will do the trick, or that whatever Padilla knows isn't stale. But we can't rule out the possibility that after many months (or years) of isolation, a suspect might eventually reveal something useful.

The problem with that argument is the Constitution -- not just its fine points but the very idea of a government under law. If the mere possibility of a useful interrogation is enough to support indefinite detention incommunicado, no rights and no checks and balances are available at all, except when the executive chooses to grant them. If a ruler in any other country claimed unilateral powers of this sort, Americans would be quick to recognize the affront to the most basic of human rights.

Nonetheless, the government relies on two lines of precedent to support its approach. First is Ex Parte Quirin, the German saboteurs case. In World War II, eight German naval officers, one of whom claimed to be a U.S. citizen, landed secretly in the United States and were arrested. After trial by a military tribunal, seven were executed. The Supreme Court held that because they were members of the enemy armed forces, the military had jurisdiction (as it did over members of our own armed forces) to try them. The Court said that military jurisdiction was permissible because the defendants were "admitted enemy invaders."

In the media and in court, the Bush administration argues that Quirin squarely settles its power over Padilla. The administration is right only if there is no important difference between being an admitted enemy and being an accused enemy. The argument boils down to the claim that because a person who admits guilt can be punished, the law should allow the same result when the president reviews a secret record and finds the crucial facts in the privacy of the Oval Office.

The government's other precedents are the cases holding that on the battlefield, military discretion is unquestioned. And in this war on terrorism, it says, the entire nation is a battlefield. That analogy isn't completely false, but if the military can do within the United States whatever it could do in Afghanistan, again, checks and balances are over for the duration.

The American homeland has been threatened before. The Civil War brought four years of fighting on American soil, and Hawaii was a theater of active military operations throughout World War II. In both situations, the military argued the need for displacing civilian courts, and in both situations, the Supreme Court rejected the argument explicitly. "Martial law," the Court said in Ex Parte Milligan, "cannot arise from a threatened invasion. The necessity must be actual and present ... such as effectually closes the courts. ... If martial law is continued after the courts are reinstated, it is a gross usurpation of power."

The presumption against military detention, whenever civilian courts are functioning, is not merely a doctrinal technicality. The central premise of government under law is that executive officials, no matter how well intentioned, cannot be allowed unreviewable power to imprison a citizen. Even in times of dire emergency, the Supreme Court has been consistent and emphatic on this point.

"Fiscal Restraint"

While aggressively eroding civil liberties, the Bush administration has neglected many obvious security priorities. An essential first step in a serious counterterrorism effort is to determine what mistakes we made before 9-11. President Roosevelt ordered an independent inquiry less than three weeks after Pearl Harbor. NASA acted within hours to order an independent inquiry into the Columbia space shuttle disaster. Yet it's now more than a year since 9-11, and an independent inquiry into what went wrong is just getting started.

Last September, after opposing such an inquiry for months, Bush made a high-visibility announcement supporting a 9-11 investigation. But he then quietly torpedoed a bipartisan congressional agreement on its structure. That issue wasn't resolved until December, so the inquiry is just beginning to staff up. And with a budget that cannot exceed $3 million, its prospects are not auspicious. By comparison, to unearth every detail concerning Whitewater, Monica Lewinsky and other President Clinton matters, Congress gave Independent Counsel Kenneth Starr 20 times more money, a total of $70 million.

Other expenditure decisions are even more scandalous. Last year Congress appropriated $419 million for enhanced airport security, $82 million for upgrading FBI counterterrorism technology, $39 million for inspecting cargo containers at our ports, and $165 million for protecting the food and water supply. But in August, President Bush froze all these funds, stressing the need to exercise "fiscal restraint." The National Nuclear Security Administration, the agency that protects our nuclear stockpile and our weapons laboratories, is now struggling with a shortage of security guards. Yet, incredibly, the agency was forced to announce a hiring freeze last November because of budget constraints. Though we now may be just weeks away from a new war that will put our homeland at great risk, counterterrorism efforts such as these have been on hold since last August.

There is a startling disconnect here. The rhetoric of war and national emergency is invoked over and over to support limits on civil liberties, but when the subject is tax cuts, talk of a national emergency stops. The administration's strategy is not captured by the cliché about "shifting the balance" from liberty to security because it is shortchanging us on both.

The White House does not exaggerate when it talks about the dangers of al-Qaeda and the need for a "war" on terrorism. Precisely because the risks of a terrorist attack are so serious, administration policies should be troubling to every American. The decision to blame civil liberties and to draw attention away from other aspects of an effective counterterrorism strategy is a dangerous choice.