August 31, 2003
By Heather Mac Donald
THE backlash against the Bush administration's War on Terror began on 9/11 and has not let up since. Left- and right-wing advocacy groups have likened the Bush administration to fascists, murderers, apartheid ideologues and usurpers of basic liberties.
Over 120 cities and towns have declared themselves "civil liberties safe zones"; and the press has amplified at top volume a recent report by the Justice Department's inspector general denouncing the government's handling of suspects after 9/11. Even the nation's librarians are shredding documents to safeguard their patrons' privacy and foil government investigations.
The advocates' rhetoric is both false and dangerous. Lost in the blizzard of propaganda is any consciousness that 9/11 was an act of war against the U.S. by foreign enemies concealed within the nation's borders. If the media and political elites keep telling the public that the campaign against those terrorist enemies is just a racist power grab, the most essential weapon against terror cells - intelligence from ordinary civilians - will be jeopardized.
It is crucial, therefore, to demolish the lies about the anti-terror initiatives. Close scrutiny of the charges and the reality that they misrepresent shows that civil liberties are fully intact. The majority of legal changes after 9/11 simply brought the law into the 21st century.
THE anti-War on Terror worldview found full expression only hours after the World Trade Center fell, in a remarkable e-mail that spread like wildfire over the Internet that very day.
Sent out by Harvard Law School research fellow John Perry Barlow, founder of the cyber-libertarian Electronic Freedom Foundation, the message read:
"Control freaks will dine on this day for the rest of our lives. Within a few hours, we will see beginning the most vigorous efforts to end what remains of freedom in America . . . Remember that the goal of terrorism is to create increasingly paralytic totalitarianism in the government it attacks."
Right-wing libertarians soon joined forces with the Left. A few months after the Twin Towers fell, the Rutherford Institute, a Christian think tank concerned with religious liberty, added the final piece to the anti-administration argument: The 9/11 attacks were not war but, at most, a crime.
Rutherford President John Whitehead denounced the Bush administration's characterization of the terror strikes as "acts of war by foreign aggressors," without however offering a single argument to support his view.
In fact, of course, the 9/11 bombings were classic decapitation strikes, designed to take out America's political and financial leadership. Had a state carried them out, no one could possibly deny that they were acts of war.
Morevoer, recognizing that the World Trade Center and Pentagon attacks were acts of war entails certain consequences.
First, the campaign against al Qaeda and other Islamic terror organizations is really war, not a metaphor, like the "war on drugs."
Second, it is a war unlike any the U.S. has ever fought. The enemy, mostly but not exclusively foreign, is hidden on American soil in the civilian population, with the intention of slaughtering as many innocent noncombatants as possible. The use of military force abroad, while necessary, is by no means sufficient: Domestic counterterrorism efforts by the FBI and other domestic law enforcement agencies are at least as essential to defeating the enemy.
Ironically, none of the changes instituted by Attorney General Ashcroft comes anywhere near what the government could ask for in wartime, such as the suspension of habeas corpus, as Lincoln ordered during the Civil War.
The changes preserve intact the entire criminal procedural framework governing normal FBI and police actions, and merely tinker around the edges. But the left and right civil libertarians are having none of it.
The charges they have brought against the War on Terror have been so numerous, impugning every single administration action since 9/11, that it would take hundreds of pages to refute them all. But the following analysis of only the main charges will amply illustrate the range of duplicitous strategies that the anti-government forces deploy.
* Strategy No. 1: Hide the judge
Jan O'Rourke, a librarian in Bucks County, Pennsylvania, is preparing for the inevitable post-9/11 assault: She is destroying all records of her patrons' book and Internet use and is advising other Bucks County libraries to do the same. The object of her fear? The U.S. government.
O'Rourke is convinced that federal spooks will soon knock on her door to spy on her law-abiding clients' reading habits. So, like thousands of librarians across the country, she is making sure that when that knock comes, she will have nothing to show. "If we don't have the information, then they can't get it," she explains.
O'Rourke is suffering from Patriot Act hysteria, a malady approaching epidemic levels.
The USA-Patriot Act, which President Bush signed in Oct. 2001, is a complex measure to boost the federal government's ability to detect and prevent terrorism. Its most important provision relaxed a judge-made rule that, especially after Clinton administration strengthening, had prevented intelligence and law enforcement officials from sharing information and collaborating on terror investigations.
But the act made many other needed changes too: updating surveillance law to take into account new communications technology, for instance, enhancing the Treasury Department's ability to disrupt terrorist financing networks and modestly increasing the attorney general's power to detain and deport suspected terrorist aliens.
From the moment the administration proposed the legislation, defenders of the status quo started ringing the tyranny alarm. When the law passed, the Electronic Privacy Information Center depicted a tombstone on its Web site, captioned: "The Fourth Amendment: 1789-2001." The Washington Post denounced the bill as "panicky."
The most infamous provision allows the FBI to seek a court order for documents held by third parties. The American Library Association, the ACLU and many others have attacked this provision as unleashing unbridled government power to spy on political enemies.
These charges are nonsense. They deliberately conceal the fact that the FBI can do nothing under the documents law without the approval of a federal court.
The vast majority of Patriot Act powers likewise require judicial approval for their exercise.
* Strategy No. 2: Invent new rights
A running theme of the campaign against many Patriot Act provisions is that they violate the Fourth Amendment right to privacy. But there is no Fourth Amendment privacy right in records or other items disclosed to third parties.
A credit-card user, for example, reveals his purchases to the seller and to the credit-card company. He therefore has no privacy expectations in the record of those purchases that the Fourth Amendment would protect. As a result, the government, whether in a criminal case or a terror investigation, may seek his credit-card receipts without a traditional Fourth Amendment showing to a court that there is "probable cause" to believe that a crime has been or is about to be committed. Instead, terror investigators must convince the FISA court that the receipts are "relevant."
This analysis applies equally to library patrons' book borrowing or Internet use. The government may obtain those records without violating anyone's Fourth Amendment rights, because the patron has already revealed his borrowing and web browsing to library staff, other readers and Internet service providers. Tombstones declaring the death of the Fourth Amendment contain no truth whatsoever.
* Strategy No. 3: No 'Net for the FBI
In May 2002, Ashcroft announced that FBI agents would for the first time be allowed to surf the web, just like hundreds of millions of people across the globe.
Previously, the Internet was strictly off-limits to federal law enforcement, unless agents had already developed evidence that a crime was under way.
In other words, although a 12-year-old could sit in on a jihadi chat room, or visit sites teaching bombmaking or track down the links for the production of anthrax, intelligence officials couldn't inspect those same public sites until they had already discovered a terror plot. But for an FBI agent in Arizona to wait for specific information about a conspiracy before researching his local biochem lab to see if it might have any connection to the Washington anthrax attacks, or might be a target for sabotage, is not the best strategy for fighting terrorism.
But Ashcroft's critics say the bureau should wait. According to the Electronic Privacy Information Center, for instance, the new guidelines "threaten Fourth Amendment rights" because they permit the FBI to "engage in prospective searches without possessing any evidence of suspicious behavior."
But there are no Fourth Amendment rights in the Web. Far from expecting privacy on a Web site, its designers hope for the greatest possible exposure to all comers. To require the FBI to be the one entity on earth that may not do general Web searches, as the civil libertarians have demanded, makes no sense.
Opening the Web to the FBI is particularly essential in fighting Islamic terrorism because the Web is the most powerful means of spreading jihad. Rohan Gunaratna, an al Qaeda expert at Scotland's Saint Andrews University, argues that unless the authorities shut down jihadist sites, "we will not be able to end terrorism." But even if the U.S. can't shut down Web pages celebrating mass destruction in the name of holy war, it should at least be able to visit them to learn what's out there.
WHEN the War on Terror's opponents intone, "We need not trade liberty for security," they are right - but not in the way they think. Contrary to their slogan's assumption, there is no zero-sum relationship between liberty and security.
The government may expand its powers to detect terrorism without diminishing civil liberties one iota, as long as those powers remain subject to traditional restraints: statutory prerequisites for investigative action, judicial review and political accountability. So far, these conditions have been met.
Nothing the Bush administration has done comes close to causing the loss of freedom that Americans experienced after 9/11, when air travel shut down for days, and fear kept hundreds of thousands shut up in their homes.
Should al Qaeda strike again, fear will once again paralyze the country far beyond the effects of any possible government restriction on civil rights. And that is what the government is trying to forestall, in the knowledge that preserving security is essential to preserving freedom.
Heather Mac Donald is a City Journal contributing editor. Adapted from the Summer 2003 CJ.
©2003 New York Post
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