Confronting Terror: 9/11 and the Future of American National Security, a new book of essays edited by Dean Reuter and John Yoo, looks very interesting. The contributors are a very notable group, including (among many others) Michael Chertoff, John Ashcroft, Laurence Silberman, Richard Epstein, Alan Dershowitz, Jonathan Turley, and Nadine Strossen.
I thought I’d give people a flavor of this book by posting two chapters, one by former Attorney General John Ashcroft and Prof. Viet Dinh, and one by Prof. Nadine Strossen (the President of the ACLU from 1991 to 2008). Here is the Ashcroft / Dinh chapter, called “Liberty, Security, and the USA Patriot Act”; the Strossen chapter is in the next post.
At the time of this writing, nearly a decade has passed since the 9/11 attacks, and fortunately our terrorist enemies have not successfully engaged in any large-scale attacks on American soil since. This is a testament to the remarkable efforts of an alert citizenry and of law enforcement, intelligence, and homeland security personnel. The hard work, dedication, and increased coordination have been greatly aided by the tools, resources, and guidance provided by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act).
Proposed less than a week after the terrorist attacks of 9/11 and enacted a month later, the Patriot Act is among the more important national defense legislative measures in American history. The act enables government to combat a protracted and difficult war against those who wish to rob us of our way of life — a way of life defined by freedom. At the same time, the Patriot Act constrains attempts by governmental actors to extend the government’s reach inappropriately.
Since the 9/11 attacks, Americans have been told that a choice must be made between security and liberty. Frequently, it is suggested that there is a necessary balancing act between individual liberty and security, where enhancement of one is only possible at significant cost to the other. In the search for this elusive balance, commentators often cite Benjamin Franklin’s dictum that those who “give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Liberty (let alone “essential liberty”) is not to be traded for safety (let alone “a little temporary safety”). At its core, Franklin’s maxim is correct. Security is not an end in itself, but rather a means to the greater end of liberty.
Freedom is a value that is without parallel. Freedom never requires balancing. What it requires is enhancement. Freedom must be supported and safeguarded. Freedom must be secured. Security, then, is not a counterweight to freedom, but rather a means to ensure that freedom remains intact and contributes positively to the character of humanity. Simply put, appropriate security enables freedom, rather than competes against it. Thus, searching for a “balance” between liberty and security is counterproductive because such an approach is based on a false dichotomy. It is the function of security to safeguard liberty. Unless it does, it should not be undertaken.
The essential issue Americans face today is not a trade-off between security and liberty, but rather an inquiry into what liberty entails, and how security is best utilized to protect that liberty. Perhaps Edmund Burke said it best: “The only liberty I mean is a liberty connected with order; that not only exists along with order and virtue, but which cannot exist at all without them.” In other words, true liberty is by necessity an ordered liberty. The stability and legitimacy essential for a government under law can only be obtained through the maintenance of this symbiotic relationship.
Consider liberty without order. Absent order, liberty is an unbridled license allowing men to do as they choose. Liberty without order is unstable, and arguably illegitimate. In such a world, the weak must submit to the will of the strong. One man’s expression of his desires deprives another of his freedom. True, legitimate liberty is achievable only in an ordered society, in which rules and laws govern and limit the behavior of men.
Just as liberty without order is illegitimate and unstable, so too is order without liberty. A society of order without liberty is plausible only by exerting force to compel obedience, thereby creating the mirage of stability. In any ostensible order maintained by brute force, the ruler has no greater claim to the use of force than the ruled. The two are in constant conflict — one seeking to maintain the mirage of stability created by the use of force, the other striving to achieve his freedom by the use of force. Order and liberty are, therefore, not competing concepts that need to be offset to maintain some sort of democratic equilibrium. Rather, they are complementary values symbiotically contributing to the stability and legitimacy of a constitutional democracy.
On September 11, 2001, Osama bin Laden attacked those values, and thousands died tragically. al-Qaeda aimed not only at our physical structures, but at the very foundation of our ordered liberty.
On that one day, a handful of individuals, having spent only several hundred thousand dollars, inflicted greater damage on America and its citizens than most modern armies would be capable of doing by striking directly at our nation’s order and freedom. On that day it became clear that warfare is no longer the exclusive domain of nation-states.
That some wish to inflict such damage on the United States and its people is neither new nor surprising. What is surprising is that they identified the means of doing so — that they were able to do that which no enemy nation had ever been able to do in the history of the United States.
There were signposts leading to the 9/11 attacks. For many years, individual terrorists and terrorist organizations sought to execute state-like force. It was not a watershed moment on 9/11 when a breach of the monopoly on force of nation-states occurred. Rather, it merely marked a shift — though in a most dramatic way. On that day, twentieth-century warfare was amplified by a modality of destruction that shocked mankind. Old-style battles, characterized by conflict among nation-states, yielded to the chaotic modernity of the twenty-first century. The 9/11 barbarism dramatically marked the beginning of an era that threatens to replace governed order with pervasive disorder.
Because terrorists owe no allegiance to any particular place or polity, and willingly sacrifice human life, including their own, in an effort to impose their rigid theocratic agenda, the threat to national and global security is posed to freedom — the freedom respecting all nation-states collectively. In this new era, the threat to security no longer emanates only from hostile nation-states, but is one rooted in ideology and independent of geography. This global terrorist movement, and its ability to inflict mass destruction, poses a pervasive and asymmetric threat to order on an international level. The threat is pervasive because the movement is a loose network united by shared objectives and ideals; it is asymmetric because the new breed of warriors exploit the vulnerabilities of open, freedom-focused liberal democracies, inflicting terror on easily accessible targets — the masses of humanity.
Modern terrorists engender fear by undermining the stability of consequence. Acting without the bonds of a geographic base or the restraint of a national polity, the enemy is faceless and, in this way, impregnable. That nation-states no longer have a monopoly on the motives and means of war, the lesson at the core of 9/11, has ominous implications for law, policy, and international relations.
Terrorism, whoever its perpetrator and whatever the goal, poses a fundamental threat to the ordered liberty that our constitutional democracy is designed to protect. The terrorist seeks not only to kill, but also to terrorize. Increasing the body count is designed to instill fear in those who survive. The terrorist is unlimited in the choice of victims and indifferent as to the traditional “combat” value of the targets. Part of an international conspiracy of evil, terrorists operate across boundaries. They capitalize on borders as barriers to enforcement and prevention. They use violence to disrupt order, kill to foment fear, and terrorize to paralyze normal human activity. By definition the methods and objectives of terror attack the foundations of ordered liberty.
In this sense, the terrorist is fundamentally different from the criminal offender normally encountered by our criminal justice system. By attacking the foundation of societal order, the terrorist seeks to demolish the structure of liberty that governs our lives. By fomenting mass terror, the terrorist seeks to incapacitate the citizenry from exercising the liberty to pursue our individual and collective ends. This is not mere criminality. It is an act of war against our polity.
In waging that war, the terrorist employs means that fundamentally differ from those used by traditional enemies encountered on battlefields governed by the established rules of war among nations. Those rules clearly distinguish uniformed combatants on the battlefield from innocent civilians who are off-target. This distinction is advantageously exploited by the terrorist. In this war, the international terrorist against whom we fight differs even from guerilla warriors of the past who mingled among civilians and on occasion targeted innocent civilians.
Countering the threat to liberty, our traditional and essential responses have been through the valiant efforts of our men and women on foreign battlefields and the constant vigilance of our men and women of law enforcement on the streets of America. Both professional soldiers and law enforcers have been aided and supported most valuably by alert citizens. However, given the unorthodox nature of the new threat, the traditional approach of the past — to allow situations to develop until the last possible moment so that traditional criminal charges could be brought — became untenable. The dire consequences of fully executed terrorist plots became too catastrophic to adopt any policy other than aggressive prevention.
After 9/11 and faced with a new kind of threat, the Department of Justice refocused its investigative and prosecutorial resources toward one overriding and overarching objective: to prevent terrorist attacks before they happen. This massive effort was undertaken to defend the foundations of our ordered liberty — to deliver freedom from fear by protecting freedom through law.
Proper adaptation to this reprioritization required that law enforcement be furnished with new tools. Before 9/11, the terrorists had a technological advantage: our own law enforcement personnel did not have the tools and technology to compete with terrorist intelligence. Immediately following the terrorist attacks, the Justice Department worked tirelessly to prepare a legislative proposal containing the tools investigators and prosecutors needed in the war against terror.
Following a month of deliberation and consideration, the USA Patriot Act passed with overwhelming bipartisan support. The House of Representatives voted 357 to 66, and the near-unanimous vote of the Senate was 98 to 1. Signed into law by former President George W. Bush on October 26, 2001, the Patriot Act contained more than one thousand anti-terrorism measures that have helped law enforcement investigate, prosecute, and most importantly, prevent acts of terror.
In the years leading up to 9/11, a system designed to separate law enforcement functions from intelligence and national security functions hampered America’s law enforcement efforts. The premise that law enforcement powers should be separated from intelligence gathering formed the basis for this system. Fear that evidence gathered during intelligence operations could taint evidence gathered for the purposes of criminal prosecution led to the serious restriction of communication between law enforcement and intelligence gatherers. Constitutional safeguards for criminal prosecutions — often irrelevant to the process of gathering national security intelligence — were interpreted as a deterrent to the detection and diffusion of terrorist plots. In 1995, the Justice Department issued a memorandum titled “Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations,” which both reinforced and enhanced this practical and philosophical wall, chilling communications between prosecutors and intelligence officials. As a result, different agencies such as the CIA and the FBI could not communicate freely, and the FBI’s intelligence division was prohibited from sharing certain kinds of information with its own criminal division.
Although well intentioned, the “wall” was a cause for concern, even before 9/11. The Patriot Act dramatically reduced the devastating effects of seriously curtailed communications between intelligence and law enforcement officials. The act sought to ensure that information could be shared and the dots connected. At the same time, the Patriot Act maintained the appropriate respect for constitutional requirements in criminal prosecutions.
The information sharing authorized by the Patriot Act put the good guys on an equal footing with the bad guys, who for too long had been able to evade law enforcement. While it now seems incomprehensible that we ever countenanced a communication prohibition between law enforcement and intelligence operatives — a prohibition that endangered the lives and liberties of our citizens — it existed across administrations through much of the last quarter of the twentieth century. It frustrated those to whom we entrust our safety and our freedom.
Section 218 of the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA) to facilitate increased cooperation between agents gathering intelligence about foreign threats and investigators prosecuting foreign terrorists. The provision reconfigured the requirement that intelligence be the “primary purpose” of an investigation with a “significant purpose” test. Because of this change, intelligence and law enforcement authorities can now share information without fear that such coordination will jeopardize the legal validity of the investigation and attendant orders.
The Patriot Act actually created a protection that the FISA statute in its original form did not afford. Passed in 1978, section 1804(a)(7)(B) of the FISA statute required “that the purpose of the surveillance” be “to obtain foreign intelligence information.” However, at some point both the Justice Department and the courts read into this provision the “primary purpose” test, despite no evidence, and indeed despite substantial legislative history to the contrary, that Congress had intended such a test. The result was to limit surveillance under the FISA to only those situations where foreign intelligence surveillance was the government’s primary purpose. This “primary purpose” test became the norm in interpreting the statute, and even prevailed in FISA decisions after the passage of the Patriot Act’s amendment providing for the “significant purpose” test.
In 2002, the U.S. Foreign Intelligence Surveillance Court (“FISA Court”) authorized certain surveillance requested by the Justice Department but imposed severe restrictions on the surveillance, intended to comply with the previously prevailing “primary purpose” test. The restrictions included prohibiting law enforcement officials from making certain recommendations to intelligence officials or from directing or controlling the use of FISA procedures.
This perpetuation of the “wall” by the FISA Court, despite Congress’s clear action less than a year before in the Patriot Act, forced the Justice Department to bring the first ever appeal of a FISA Court decision. In that appeal the FISA Court of Review reversed the lower FISA Court’s orders to the extent they imposed restrictions on the conduct of the surveillance, and ordered the FISA Court to grant the applications as submitted. In so doing, the Court of Review found that the “primary purpose” test had been a “false dichotomy,” never actually required by the congressional mandate in the original 1978 FISA statute. As a result, the Patriot Act’s language requiring “a significant purpose” in fact established a higher standard that afforded greater protection from potential improper government utilization of FISA orders. Ironically, a complete repeal of the Patriot Act would likely result in a reduction of the safeguards against overreaching use of the FISA authority.
The Patriot Act’s clarification of the FISA’s capacity to thwart terrorist activity equipped prosecutors with the tools necessary to take convicted terrorists off the streets. Due to the harsher penalties for terrorism provided in the Patriot Act, terrorists can now be detained for significantly longer periods.
Terrorists require funding to complete their attacks. Title III of the Patriot Act helped stem this flow of money. Title VIII of the act improved cyberterrorism laws, and filled gaps in criminal law by creating a new crime of attacking a mass transportation system.
Terrorist activities often span several federal districts, and so too must the investigations of these activities. In these investigations the ability to act swiftly is imperative, because the opportunity to prevent an attack can be fleeting. With the mandate for prevention (rather than reliance on post-disaster prosecution), it was no longer feasible to lose time petitioning several judges in multiple districts for search warrants related to a single investigation. To address this problem, section 220 of the Patriot Act authorized out-of-district warrants in certain terrorism cases. This tool ensured the Justice Department’s success in disrupting and prosecuting the Northern Virginia Jihad operation.
The Patriot Act also allowed law enforcement to conduct investigations without tipping off terrorists. Informing a terrorist of an investigation prematurely allows the terrorist the opportunity to flee, destroy evidence, intimidate or kill witnesses, cease contact with associates, or take other evasive measures. For decades, federal courts in other law enforcement settings have allowed law enforcement to delay notifying the subject of an investigation that a search has been executed. This same authority to delay notification in terrorist cases, supervised by federal judges, gives law enforcement the ability to identify the conspiring terrorists’ associates, coordinate the arrest of multiple subjects without tipping them off, and diffuse threats to our communities.
Finally, the Patriot Act harmonized law with current technology. For decades, law enforcement officials had used multi-point wiretaps to track drug traffickers and mobsters. The Patriot Act allowed federal agents to use this same technology to track terrorists. Instead of requiring law enforcement officers to apply for separate warrants for every phone, fax, and communication device used by a single terrorist, warrants can now authorize the terrorist himself as the subject of the surveillance. As a result the surveillance order can apply to all communication devices he uses. This capacity makes it much harder for terrorists to evade detection by switching from device to device.
During the debate over various provisions of the Patriot Act, the drafters struggled with important constitutional questions. For example, in forming the “significant purpose” test of section 218, the drafters considered whether the change comported with the Fourth Amendment’s protection against unreasonable search and seizure (it does), and whether there is adequate process for criminal defendants to seek to exclude intelligence evidence from non-terrorism trials (there is). Ultimately, the drafters were confident of the answers and of the constitutionality of the resultant legislation.
Nonetheless, the safeguards of the Patriot Act are vulnerable to abuse by zealous enforcers, just as the provisions of the act can be violated by those whose aim is the destruction of American freedom. Each type of violation requires redress. It must be recognized, however, that there is a distinct difference between a violation of a law and a law that itself offends liberty. For example, an individual might offend or violate the Constitution, but that violation would not render the Constitution infirm. Consequently, the potential that a law may be violated should not render the authority expressed in the law infirm or invalid. In the course of domestic law enforcement duties, a police officer may misuse a commonly accepted power, such as his power to arrest and detain; but this does not mean that the power of a police officer to arrest and detain is either unconstitutional or unwise. It merely means that the individual police officer has abused that power and that the abuse of the power should be remedied. Similarly, if an individual improperly or illegally misuses the Patriot Act provisions, it does not follow that the provision itself is improper.
A Justice Department audit in March 2007 found that the FBI had “improperly and, in some cases, illegally used the Patriot Act to secretly obtain personal information” about United States citizens. This does not mean the Patriot Act itself is improper. This understanding is imperative to provide for a constructive discussion of the issues surrounding various provisions of the act, their ongoing necessity, and the need to monitor how the provisions are applied in specific cases.
One of the many safeguards of the Patriot Act was the inclusion of a “sunset” clause for certain provisions — meaning the provisions would expire on a date certain unless Congress acted affirmatively to reauthorize them. In 2005, Congress had the opportunity to discuss the effectiveness and appropriateness of many of the act’s provisions in determining whether to reauthorize the sunsetting provisions. Congress found the tools provided by the Patriot Act to be invaluable and enacted two bills to continue their effect.
The USA Patriot and Terrorism Prevention Reauthorization Act of 2005 reauthorized all but two of the provisions of Title II that would have expired. Many provisions, including section 218, were made permanent. Although the reauthorization was largely without amendment, Congress did take the opportunity to include a small number of amendments before voting to reauthorize. Although section 215 — the National Security Letter provision, which allowed national security investigators access to business records in certain circumstances — already contained significant checks to prevent abuse, Congress added to it a judicial review process for recipients to appeal the request for information. Additionally, Congress adopted a sunset date of December 31, 2009 for three particular provisions, including the National Security Letter provision. In 2010, President Obama signed a one-year extension of these three sections. As a consequence of these sunsetting provisions, the Patriot Act has been continuously refined. Congress’s reauthorization stated clearly that the purpose and implication of each provision is in furtherance of, and in keeping with, our ultimate goal of securing liberty.
Securing liberty is a constantly evolving battle of the utmost importance to the United States. The Patriot Act has provided essential, valuable tools that have enabled law enforcement, intelligence, and Homeland Security personnel to cooperate in the prevention of terrorist attacks since 9/11. Its transformation of the traditional agencies from segmented, independent actors into a dynamic, cohesive network has provided a means of protection against the threats of today while anticipating threats in the future. The reauthorization and support of the Patriot Act is a firm testament to the effectiveness and continued need for these tools as we continue our battle in the ongoing war on terror.