Protecting Civil Liberties at a Time of Crisis

Morton H. Halperin
October 25, 2001

Civil Libertarians understand as clearly as anyone else that the events of September 11 change America, and they support efforts to track down those who perpetrated these acts, and to take effective steps to deter new terrorist attacks on Americans at home and abroad.

Where they may differ with others is in their skepticism that expanding surveillance authorities is the most effective way to prevent further attacks. They also fear that new powers given to the government will be used against targets other than the terrorists we all have in mind. And they insist that whatever changes are made in the law be made carefully, following normal procedures and with a serious effort to balance national security and civil liberties.

What has happened so far gives us concern on all three counts. Since September 11 we have seen threats to civil liberties in three areas: government efforts to control debate and limit access to information, incarcerations of large numbers of people in a very troubling manner, and the rushed passage of an anti-terrorism bill.

Restrictions on Debate and Information

The effort to control public debate began on September 11 when those in the news media who criticized the president for not returning immediately to Washington received phone calls from the White House warning them that this was not the time to second guess. Then those who criticized the calls were attacked in public. More recently, and more ominously, the National Security Advisor called the major networks and then the print media to warn against running the full text of Osama bin Laden's statements. Assertions that coded messages might be transmitted ignored the fact that the full text would be available on other networks and on the Internet and that the U.S. networks broadcast an English translation. Clearly, the administration was most interested in preventing the American people from hearing directly what the terrorists had to say.

The government is also going to great lengths to keep control of its own information. Websites have been shut down and briefings for Congress curtailed, at least before the Congress complained. The Attorney General issued a new directive on the FOIA in which he reversed the existing presumption in favor of secrecy, warned agencies not to disclose information that the FOIA did not require be disclosed, and promised to vigorously defend decisions to withhold information.

None of this is to say that the government does not have the right to withhold information which would benefit our adversaries, including the terrorists, and which is not essential for public debate on the issues we face. Clearly the administration is going beyond that in its efforts to intimidate the news media and suppress information.

Detention without Due Process

The incarceration of hundreds of people for more than a month after the terrorist attacks is also deeply disturbing. The government has refused to even give out the names of the people being held or explain why they are being detained. Press reports suggest that judges have issued gag orders and that attorneys feel under pressure not to challenge the procedures for fear that it will lead to their clients being subjected to greater punishment. One of the hallmarks of a constitutional state, and of the U.S. Constitution in particular, is that the people have a right to know who is arrested and for what reason, and to have a magistrate decide in public if the detention is justified. This right protects not only individual detainees but also the public and society for it stops the government from mounting secret prosecutions that do not abide by the rule of law. In a time of crisis, there may be reason to hold some people, but not in this manner.

Given what the government has done using pre-Sept. 11 authorities, it is hard to see why it thought it needed additional powers to detain immigrants. Yet the government sought such powers, along with a broadening of its surveillance authority and its right to pass information between law enforcement and intelligence agencies. The anti-terrorism bill passed on Oct. 25 permits the government to use the much less stringent provisions of the Foreign Intelligence Surveillance Act (FISA), which was intended only for intelligence gathering, to compile evidence of a crime that would lead to the indictment of citizens as well as aliens. This means that the government can wiretap without probable cause and conduct secret searches of homes and offices without any kind of notice before or after the search or any kind of accounting of what was seized. Another provision purports to authorize the government to delay notice of a search in all criminal investigations, not just in cases of suspected terrorist activity.

An Overly Broad Anti-terrorism Bill

Civil libertarians recognize along with everyone else that the government may well need additional powers to deal with international terrorists determined to kill Americans at home and abroad. But they also realize that a careful and deliberative process must be followed when the government moves aggressively to expand its powers at the expense of individual freedoms.

What is troubling in this case is that in the drafting and passage of this bill, no such process was followed. The administration refused to identify what emergency authorities it might need to prevent additional attacks while a careful examination was conducted of what exactly went wrong and how, or even if, existing powers proved inadequate. It refused to limit the new powers to investigations of terrorists who threaten Americans, and it refused to meet with outside experts to discuss how to narrow the provisions so that civil liberties are not violated. The administration simply dusted off every proposal it had on the shelf, many of which had been defeated previously. It wrapped the old proposals into a new bill and sent the bill up to Congress without new interagency review, demanding that it be passed immediately. When the House Judiciary Committee unanimously reported a bill with some safeguards, the administration successfully pressured the House leadership to abandon the bill and adopt most of the far worse Senate measure. The final text was drafted in a secret and closed informal conference. No conference report or committee reports exist to support the bill's passage.

This is a dangerous way to legislate the delicate balance between national security and civil liberties.

Morton H. Halperin is a senior fellow of the Council on Foreign Relations. He chairs the advisory board of the Center for National Security Studies and is counselor to the Constitution Project and the National Security Archive. He served in the Johnson, Nixon, and Clinton administrations in the Department of Defense, the State Department, and on the staff of the National Security Council.

This article and other analyses of the impact of the September 11th attacks on civil society in the U.S. and abroad are available on the Soros foundations network website at www.soros.org.