Taking Liberties: The War on Terror and the Erosion of American Democracy (4 page)

This book will show how ordinary Americans have been affected by the War on Terror by having our own rights and privacy compromised, by being deterred from exercising our collective right to free speech and association, and by having our democracy skewed. Aspects of a number of these stories may be familiar to some from news accounts over the years. But it is critical to put together the pieces of this puzzle to see the full picture and to observe the themes that emerge: the pitfalls of excessive
secrecy, the consequences of abdication by Congress and the courts, and the enduring wisdom of the Constitution’s prescribed methods for protecting our rights. It should also be noted that these stories are only the tip of an iceberg of consequences. I will discuss, for example, six people—four librarians and two Internet service providers—who challenged a particular form of surveillance called the National Security Letter. Hundreds of thousands of National Security Letter requests have been served since 9/11 but, because of draconian gag orders built right into the statute, the public only knows the stories of these six intrepid individuals. The people involved in the hundreds of thousands of other instances apparently caved in to the government’s demands to turn over sensitive records about their clients or patrons without any court order and never to mention the experience to anyone, and so we don’t know what they might have to say. Secrecy prevents us from fully assessing costs—as well as benefits—and also means that we often cannot see the features of the people adversely affected by our policies, even when we know they exist. The stories that can be told and woven together at this point are not a complete history, but they are troubling enough to cause concern and to help us visualize what else might be behind the curtain.

I also want to stress that many of the people whose stories I will tell are not just victims. In a decade when all three branches of government failed to safeguard our constitutional values, ordinary Americans—librarians like George Christian of Library Connection of Connecticut, Internet service providers like Brewster Kahle of the Internet Archive and another patriotic litigant who spent over six years identifiable only as John Doe, as well as military leaders, social workers, journalists, administration officials who made the difficult decision to share their concerns about runaway programs with reporters, even local governments—rose up to do the job the Constitution expects “the people” to do—to be the government and to defend our constitutional birthright.

My interest is not in flogging the Bush Administration for its errors or indulging in
schadenfreude.
My focus is primarily on powers and potential problems that are still in play as I write. Unlike Andrew Bacevich
²⁵
and some others who have written damning critiques of the Bush Administration’s War on Terror, I do not seek to portray 9/11 as a convenient excuse for people who wanted to aggrandize executive power for their own selfish reasons. There are many other reasons why presidents and government officials of good faith who do believe in constitutional values are willing to seek overinflated executive powers when it comes to national security. It is
these natural pressures I am interested in exploring, rather than engaging in ad hominem attacks.

Several caveats: First, I do not claim to be an expert on how to defeat terrorism. After more than three decades of studying, teaching, and writing about the Constitution and more than two decades working closely with the ACLU, I think I can claim some expertise on the subject of civil liberties. My perspective is from the civil liberties side of the scale, but that doesn’t mean I do not understand that these issues can look different from the point of view of the president and Congress, as we hold them responsible for our protection and blame them if they fail. If my views tilt toward the civil liberties side of the balance, I hope to counteract the constant pressure on our elected officials to tilt to the other side and look to short-term pragmatism (including the results of the next election) rather than to our long-term values. It is not my purpose—or within my competence—to judge which antiterrorism techniques are or are not effective, but I will point out places where experts seem to question our current assumptions about what is effective, because these are the very places where the judgment of the American people should be invited. I am not prescribing any specific antiterrorism program, but I am inviting all Americans to play a more significant role in the process of deciding whether we need to correct our course. My criticism is primarily skepticism, and my goal is primarily the central goal of the Constitution: to make sure that important policy decisions are made by the right decision-makers.

Second, although I am proud to serve as president of the ACLU and I rely heavily on the admirable work of ACLU lawyers and staff members both in information gathering and analysis, this book is intended to reflect my own views, which are not necessarily those of the ACLU in all respects. But with the ACLU, I believe that the constitutional concerns I raise go beyond partisan politics. There are many areas where libertarians and civil libertarians share concerns about excessive secrecy, excessive surveillance, and unconstrained government power. Conservatives like Bruce Fein
²⁶
agree with people to their left on the political spectrum, like Anthony Lewis,
²⁷
that during the War on Terror decade we have lost our balance and jeopardized our constitutional heritage. The heroes I will describe, those who stood up for constitutional rights and American tradition, include Democrats like Russell Feingold, the sole opponent of the Patriot Act in the Senate, and also libertarians like Ron Paul, who has fought intrusive security measures like bodyscanners at the airport,
²⁸
and whose supporters formed a group to oppose the reelection of any members of
Congress, no matter what their party, who voted to confer immunity on the telecommunications companies that had collaborated with the Bush Administration’s illegal surveillance program.
²⁹
Steven Bierfeldt, Development Director of the Campaign for Liberty, an outgrowth of Ron Paul’s presidential campaign, became an ACLU client when he was detained at the St. Louis Airport because he was traveling with a quantity of cash connected with his work.
³⁰
Like the ACLU, the Cato Institute has consistently critiqued government overreaching in antiterrorism efforts as unconstitutional and ineffective. In a foresightful 2002 Cato article called “Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism,”
³¹
Timothy Lynch argued that lawmakers have developed a destructive pattern of restricting additional civil liberties after every terrorist incident without ever stopping to examine whether earlier hastily adopted restrictions have proved to be effective. “We can either retain our freedom,” the article said, “or we can throw it away in an attempt to make ourselves safe.” A 2010 book edited by Cato staff, entitled
Terrorizing Ourselves: Why U.S. Counterterrorism Policy Is Failing and How to Fix It
,
³²
updates and elaborates on the concerns raised in that article, arguing that politicians are manipulating fear for political purposes and that we are defeating ourselves by succumbing to fantasies about the nature of and cures for terrorism.

One book cannot examine all facets of the issues I raise. Because I am focusing on the rights of Americans, I will not examine the particular impact of antiterrorism measures on non-Americans, an important topic eloquently discussed by David Cole.
³³
And because admirable books, including Geoffrey Stone’s, examine our history of respect for civil liberties in times of emergency or war, I will not try to repeat that work by spending any significant amount of space on historical context.

What I do aim to do is to correct the lack of balance in our perceptions of the War on Terror by showing how innocent Americans have been prosecuted, incarcerated, blacklisted, watchlisted, conscripted as antiterrorism agents, spied on, and gagged.
Part I
, “
Dragnets and Watchlists
,” will describe post-9/11 measures, starting with material support laws, that have a substantial effect on First Amendment rights of free speech, free association, and free exercise of religion, as well as on due process and equality. In addition to criminalizing and deterring protected speech, these laws deprive those charged of due process, minimize the role of juries, threaten humanitarians with prosecution for providing aid in troubled parts of the world or even, paradoxically enough, for trying to talk terrorist groups
into abandoning their violent tactics. Among those already affected by prosecution under these elastic material support laws, as I will describe, are the Idaho webmaster already mentioned, and an Iranian woman who was granted asylum in the United States after she had been brutally punished for supporting a pro-democracy group in Iran and then found herself prosecuted by the United States for supporting the same group. Next, I will discuss the presidential emergency program allowing the government to seize a charity’s assets, with no notice or hearing, which turned into a campaign against Muslim charities, an attack on the freedom of religion, and a serious threat to other nonprofits—all based on a declaration of an emergency now going into its second decade. The first section will conclude with a discussion of security systems, including watchlists used at the airport and by “financial institutions,” and then an examination of how businesses have been enlisted as antiterrorism enforcers and data collectors for government databanks.

Part II
, “
Surveillance and Secrecy
,” will describe the damage post-9/11 surveillance measures have done to privacy and to essential principles of the Fourth Amendment, our constitutional protection against unreasonable searches and seizures. This section will tell the story of Brandon Mayfield, the American citizen living in Oregon who was ensnared by the Foreign Intelligence Surveillance Act, and the stories of businesses, librarians, and Internet service providers who tried to protect their customers’ and patrons’ records and found that during the War on Terror decade they had to fight just to get to talk to Congress or a court about whether their constitutional rights were being violated. Finally, I will explore the dramatic story of how President Bush tried to keep either Congress or the courts from reviewing the wisdom and constitutionality of a massive eavesdropping program involving the National Security Agency, and how Congress and President Obama have followed suit.

Part III
, “
American Democracy
,” will discuss what we can learn from the failure of all three branches of the federal government to protect constitutional rights during the War on Terror decade. Any president—Bush, Obama, Lincoln, or Roosevelt—will be tempted to err on the side of choosing dragnets and secrecy. Congress has learned something about the importance of oversight in the past decade but is still unlikely to act as a needed check on presidential power. The courts, with a few notable exceptions, have failed to play their expected role of pushing back against governmental programs that compromise rights and democracy. This section will also discuss the impact of secrecy on the courts, and on
our First Amendment right of access to judicial proceedings. In conclusion, I will ask what we can learn from our own history and from other countries in recharting our course—by examining not just what mistakes we have made, but how in the past we or our counterparts have succeeded or failed in changing course after straying because of perceived emergencies. My conclusion comments on the Constitution’s multiple strategies for self-preservation, including a wide range of both familiar and lesser known rights, checks and balances, and even the structures of federalism. And the foremost and ultimate protection of our democracy is what the Preamble’s opening describes as the real government of the United States: ordinary Americans.

I.
DRAGNETS AND WATCHLISTS

1.
The Webmaster and the Football Player

They were doing things I didn’t ever think government agents
would do.
—Liz Brandt, University of Idaho Law School (2010)

What angers me most is that these are resources that could be
spent pursuing real bad guys.
—David Manners, former CIA station chief for Jordan (2004)

The part that surprised me was when I read the First Amendment
instructions.
—John Steger, Idaho juror (2004)

J
OHN STEGER
, a retired Idaho forest worker, did not expect that he would be sitting in judgment on the Patriot Act or on the First Amendment when he was called for jury duty in April 2004. The case he was assigned to hear was a criminal prosecution against Sami Omar al-Hussayen, a thirty-four-year-old University of Idaho doctoral student whose Saudi name and origins must have seemed exotic in Idaho, a highly conservative state where Arabs make up less than two-tenths of 1 percent of the population.

Sami, who was in the country on a student visa, had been living in Moscow, Idaho (population about 20,000), for five years, along with his wife, Maha, and their three young boys while he worked toward his degree in computer studies. As a Muslim student leader, Sami had led a candlelight vigil on the Idaho campus shortly after 9/11, condemning the attacks as an affront to Islam. His neighbors knew him as a gentle man, the last person anyone would suspect of terrorist sympathies. But Sami was on trial for providing “material support” to terrorists because he volunteered as a webmaster for the Islamic Assembly of North America, a Michigan-based organization, among other groups. The Islamic Assembly described its websites as designed to “[s]pread the correct knowledge of Islam; [and] [w]iden the horizons and understanding … among Muslims concerning
different Islamic contemporary issues.”
¹
To serve this educational mission, Sami had set up links so that people could look at a wide variety of sources firsthand, including some anti-American speeches, articles, and “fatwas” (interpretations of Islamic law by Muslim clerics) that advocated criminal activity and suicide operations. Sami said that he didn’t himself know what all the sources said, as he did not read them all—he was just posting links, like a journalist reporting what others have said.