Taking Liberties: The War on Terror and the Erosion of American Democracy (39 page)

[N]o part of the Union ought to feel more anxiety… than New-York…. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage, for ignominous compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians.
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The Constitution Madison and his contemporaries drafted in their turbulent era was not a document for fair weather only, to be put aside in any storm. It was a document of essential principles intended for war, peace, and twilight stages.

Threats of terrorism from domestic or foreign sources have vexed most of the world at various times, and many other countries have also been tempted to modify their laws and principles to cope with those threats. We can learn a great deal from their experiences. An Eminent Jurists Panel established by the International Commission of Jurists and chaired by Arthur Chaskalson, former president of the Constitutional Court of South Africa, spent several years conducting hearings around the world to study the clash between antiterrorism laws and previously accepted rights and principles in countries ranging from Argentina to Israel to the United States. After three years of hearings and deliberations, the panel found that the nations they studied made a serious mistake by characterizing the threat of terrorism as unique and then changing their laws or ignoring international treaties and conventions in response, rather than simply adhering to their established rule of law:

Terrorism sows terror, and many States have fallen into a trap set by the terrorists. Ignoring lessons from the past, some States have allowed themselves to be rushed into hasty responses, introducing an array of measures which are undermining cherished values as well as the international legal framework carefully evolved over at least the last half-century.
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As Harold Hongju Koh, now Legal Advisor to the State Department and a Yale Law School faculty member at the time, put it in 2002:

In the days since [September 11], I have been struck by how many Americans—and how many lawyers—seem to have concluded that, somehow, the destruction of four planes and three buildings has taken us back to a state of nature in which there are no laws or rules. In fact, over the years, we have developed an elaborate system of domestic and international laws, institutions, regimes, and decision-making procedures precisely so that they will be consulted and obeyed, not ignored, at a time like this.
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The Eminent Jurist Panel’s chief recommendation was that we need to take stock and reexamine our reactions to threats like 9/11 in order to avoid normalizing exceptional responses.
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This echoes the 9/11 Commission
recommendation that we should reevaluate our post-9/11 policies and demand that the executive branch carry the burden of justifying the continuation of policies that are costly in terms of liberty.
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Ordinary Americans and the Constitution

That is where we come in. The greatest problem we face in restoring our rule of law is mustering the political will to begin that reevaluation, given that all three branches of the federal government have been bunched on one side of the scale. But the stories I have recounted in this book, although troubling in many respects, show us what needs to happen and what can happen when some of the Constitution’s strategies for preservation of our values—like providing us with rights enforceable in court and with governmental checks and balances—are not heeded. During the War on Terror decade, it fell to people who were not on the government payroll to fight to preserve our rights and our democracy. The victims of mistakes, dragnets, and watchlists—like Brandon Mayfield (the American “foreign agent”), like Abdullah al-Kidd (who was arrested on the pretext that he was a “material witness”), like Erich Scherfen (who almost lost his job as a pilot), like Hossam Algabri (who was banished by his bank)—told their stories publicly; many endured years of litigation in the hope that others could be spared having the same things happen to them. Reporters with major news media, like Barton Gellman, Eric Lichtblau, and James Risen; librarians, like George Christian; and their fellow John Does including Internet service provider Nick Merrill, patriotically stood up for First Amendment freedoms of thought and speech, including our right to talk back to the government. Scholars, humanitarians, lawyers, social workers, and historians fought in the courts and in the media to defend our privacy, our freedom of speech, and our freedom of association. Muslim-Americans have contested the demonization of their religion.

This is all part of the Constitution’s design too. That remarkable document provides multiple layers of protection for its fundamental structures so that even when our courts and representatives fail us, we can keep democracy alive if we have the will. The Constitution’s bottom line is that the people who, in the end, have the responsibility to safeguard our constitutional heritage are the very people who truly are the government: “we, the people,” in the first words of the Preamble. Our government is not just for the people but, truly, of the people and by the people. The Constitution casts us in active roles. We are the ultimate policymakers, deciding on what the laws will contain by voting and by lobbying our representatives. If we
have a complaint, the First Amendment guarantees us the right to petition the government for redress of grievances. We are the ultimate adjudicators. The Constitution empowers us to serve on juries so, like John Steger of Idaho, we can use that power to thwart unjust prosecutions. We are the ultimate watchdogs. The First Amendment right of access to the courts and the Sixth Amendment right to public trials enable us to monitor what the courts are doing. The First Amendment also encompasses a guarantee of freedom of the press so that reporters can provide us with information we need to make policy decisions and to monitor the conduct of our elected officials and courts. As several of the previous chapters have shown, the press has been invaluable during the past decade in revealing attempts to subvert democracy, like President Bush’s self-approved Terrorist Surveillance Program. The lawyers who brought a constitutional challenge against the NSA program were able to do so only because they read about the program in the
New York Times
. Lawyers who were seeking justice for extraordinary rendition victims learned from an article in the
New Yorker
about the role of Jeppesen Dataplan in transporting victims to sites where they were detained and tortured. Without investigative journalists, we would know far less than we do today about how our elected officials have chosen to fight terrorism.

The Constitution also guarantees us the right of association so that we don’t have to do our jobs alone. Alexis de Tocqueville once famously observed that we are a nation of joiners. Civic associations have proven indispensable in enabling individuals to stand up to the government in the past decade, as they have at other points in our history. Organizations like the ACLU, the Cato Institute, the Center for Constitutional Rights, the Electronic Freedom Foundation, Human Rights First, Human Rights Watch, and the Rutherford Institute, among many others, have worked hard to educate the public, Congress, and the courts about the side of the balance elected officials tended to ignore—and were able to do so only because of the support of their members. It is because ACLU membership practically doubled during the War on Terror decade that ACLU lawyers were able to participate in most of the cases I have described, helping all the John Does to make their voices heard.

In addition to organizing in civic associations, individuals can organize through their state and local governmental units.
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Yet another facet of the Constitution’s design for protecting freedom and democracy is the structure of federalism. James Madison called the two interlocking layers of federal and state government a “double security”
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for our freedoms. If
the states deny people fundamental rights, the federal government is given power to intervene—to protect an individual’s right to vote, for example. And if the federal government is stingy in protecting rights, the states can afford greater protections through their own state constitutions or laws. Oregon law, for instance, provides limitations on when state or local police can infiltrate a religious group that are more stringent than the limitations binding federal officers in the same situation.
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This flexibility creates what one scholar called a “self-correcting constitutional compass.”
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Because of the U.S. Constitution’s Supremacy Clause, the states cannot control federal agents and so a state could not, for example, declare that federal agents may not use Patriot Act powers within their state. But state and local governments can generate grassroots pressure to change federal law. In the late eighteenth century, the states of Virginia and Kentucky passed resolutions declaring their judgment that Congress’s Alien and Sedition Acts violated constitutional principles
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even if the federal government did not think so at the time. In the early twenty-first century, over 400 cities, towns, and villages as well as eight states fought back against the Patriot Act, declaring its provisions inimical to American values by signing on to variations on a Bill of Rights Defense Committee resolution.
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These resolutions could not prevent federal officials from implementing federal law, but they could and did prohibit state employees from exacerbating the impact of Patriot Act provisions by providing voluntary assistance. The Portland, Oregon, City Council withdrew from a Joint Terrorism Task Force because it was concerned that joint federal-state operations might engender violations of the Oregon law limiting the ability of Oregon agents to infiltrate political or religious groups.
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Local politics can also lead individual local law enforcement officers to dissent from federal policy.
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For example, when the FBI tried to enlist local law enforcement officials to help conduct mass interrogations of some 5,000 Arab and Muslim men in the fall of 2001, some, like the Chiefs of Police in Detroit and in Portland, Oregon, declined to participate.
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Because of the Tenth Amendment (which reserves certain rights to the states), they could not be compelled to act as federal agents
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and so their resistance served as another kind of check on federal overreaching. If more than a few local officials declined to help the FBI, the federal government would have to come up with the money to hire more federal agents in order to implement such an extensive interrogation program. Federalism is very much a two-way street, however, and one of the greatest sources of civil liberties violations committed during the course of terrorism investigations in recent
years has been the Fusion Centers, multi-jurisdictional intelligence centers designed to combine and provide access to intelligence to and from federal, state, and local sources.
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Creative lawyers found other ways to use the “dual security” of state and local law to resist federal overreaching. When it was discovered that telecommunications companies had been violating federal law with impunity by providing the NSA with their customers’ private phone records, the ACLU filed complaints with the Public Utilities Commissions of twenty-four states to trigger investigations into whether the companies had also violated state laws.
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A number of the state commissions began investigations, but federal will prevailed when Congress asserted its supremacy and ordered the state commissions to leave the telecoms alone, in the same statute granting the telecoms immunity from lawsuits.
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Congress was unwilling to share decision-making power with the states, the press, or the people. The House of Representatives even passed a resolution condemning the
New York Times
for having published the article revealing the NSA surveillance.
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But the law Congress passed blocking the state Public Utilities Commissions and providing the telecoms with retroactive immunity expires in 2012 and can be reexamined if we want it to be. Congress cannot shut us out or shut us up permanently because we are the government.

The Constitution is resilient. It only needs us.

Restoring Balance

If we are willing to follow the lead of the John Does and take on the job of defending the Constitution, we can start by trying to learn from our history how to change. Critics of War on Terror measures frequently cite a canonical list of American violations of rights during times of war or crisis: the Alien and Sedition Acts, Lincoln’s suspension of habeas corpus during the Civil War, suppression of speech during World War I, the Palmer Raids, the Japanese-American internments of World War II, the McCarthy-era Communist witch hunts, Richard Nixon’s practices of spying on Americans and repressing dissent. Their point is often to compare our past mistakes with our present mistakes in order to evaluate whether we have learned as a society.
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Evaluation is important, but so is action. Instead of looking to grade ourselves on our progress or lack of progress, or to flagellate ourselves again for the mistakes of the past, I propose that we look at these episodes to study
how
we restored our balance where we did, and what went wrong where we did not. A substantial exploration of
this history is far more than I can accomplish here, but I will offer a few examples to invite further study and discussion.