When terrorists perpetrate atrocities againstinnocent American civilians, the public response isinitially one of shock, which then quickly turns intoanger. It is also common for people to experience adeep sense of anxiety in the aftermath of suchattacks—especially as they hear poignant storiesabout fellow citizens who were so suddenly andunexpectedly killed. Such stories are a harshreminder of one’s own mortality and vulnerability.

Government officials typically respond to ter-rorist attacks by proposing and enacting“antiterrorism” legislation. To assuage the wide-spread anxiety of the populace, policymakersmake the dubious claim that they can preventterrorism by curtailing the privacy and civil liber-ties of the people. Because everyone wants to besafe and secure, such legislation is usually verypopular and passes the legislative chambers of

Congress with lopsided majorities. As the presi-dent signs the antiterrorism bill into effect, toomany people indulge in the assumption thatthey are now safe, since the police, with theirnewly acquired powers, will somehow be able tofoil the terrorists before they can kill again. Theplain truth, however, is that it is only a matter oftime before the next attack.

This cycle of terrorist attack followed by gov-ernment curtailment of civil liberties must bebroken—or our society will eventually lose thekey attribute that has made it great: freedom.The American people can accept the reality thatthe president and Congress are simply not capa-ble of preventing terrorist attacks from occur-ring. Policymakers should stop pretending oth-erwise and focus their attention on combatingterrorism within the framework of a free society.

Breaking the Vicious CyclePreserving Our Liberties While

Fighting Terrorismby Timothy Lynch

_____________________________________________________________________________________________________

Timothy Lynch is director of the Cato Institute’s Project on Criminal Justice.

Executive Summary

No. 443 June 26, 2002

Introduction

When thousands of innocent civilians weremurdered in a terrorist attack on September11, 2001, President Bush declared, “Freedomhas been attacked, but freedom will be defend-ed.”1 Within a matter of weeks, American mil-itary forces were hunting down the culprits byattacking terrorist base camps in Afghanistan.That decisive military action was a perfectlyappropriate move to defend the lives, liberties,and property of the American people.

Here at home, however, President Bush andAttorney General John Ashcroft have done apoor job of “defending freedom.” The Bushadministration has supported measures thatare antithetical to freedom, such as secretivesubpoenas, secretive arrests, secretive trials, andsecretive deportations. A vigorous investigationinto the worst attack on American civilians wasnecessary, but the administration, with theacquiescence of Congress, has disregarded vitalconstitutional principles.

If one examines the history of the federalgovernment’s responses to terrorism, a dis-turbing pattern emerges. The federal govern-ment responds to terrorist attacks on U.S.soil—such as the Oklahoma City bombing in1995—by rushing to restrict civil liberties.Rarely, if ever, do lawmakers examinewhether prior civil liberties restrictions wereenacted hastily—or even whether such restric-tions have proven to be effective law enforce-ment measures. Rarely, if ever, do lawmakersfully investigate whether governmentemployees were partly responsible for thetragedy because of their negligence or incom-petence. Instead, without pausing for reflec-tion, lawmakers have rushed to confer yetmore power to government.

All indications are that the United Statesremains trapped in that same destructivecycle post–September 11. Too many of ourpolicymakers seem to believe that the way todeal with terrorism is to pass more laws,spend more money, and sacrifice more civilliberties. But genuine leadership surelyincludes ensuring accountability in govern-

ment and a willingness to reverse longstand-ing, but wrongheaded, government policies.Unfortunately, such matters have beenbrushed aside in the wake of the September11 attack. Congress made a dreadful mistake,for example, by rushing to enact a sweeping“antiterrorism” law before reaching a deter-mination as to whether law enforcement andintelligence officials were negligent orincompetent in failing to prevent the calami-ty. Since the American homeland will remainvulnerable to terrorist attack for the foresee-able future, policymakers must come to gripswith their responsibility to defend the peoplefrom foreign aggressors while maintaining afree society.

This paper will discuss the limited policyoptions that are available to the presidentand Congress with respect to the terrorismproblem. The paper will conclude that thebest defense against terrorism, as Secretary ofDefense Donald Rumsfeld has noted, is agood offense.2 That means sending our mili-tary to the terrorist base camps and killingthe terrorist leadership. Here at home, itmeans resisting the establishment of a sur-veillance state.

The Cycle: Terrorist Attackand “Antiterrorism”

Legislation

Recent experience has shown that policy-makers in America invariably respond to ter-rorist incidents by proposing and enacting“antiterrorism” legislation. Even thoughevery sort of harmful behavior—murder,attempted murder, bodily injury, destructionof property—is already prohibited by law andcarries severe criminal penalties, antiterror-ism proposals have proven to be very allur-ing. After all, the very fact that an atrocity hasoccurred is irrefutable proof that the policewere not able to thwart the attack. Thus, pol-icymakers reason that they must take actionand “alter the balance between liberty andsecurity.” With their newly acquired “tools,”

2

Too many of ourpolicymakers

seem to believethat the way to

deal with terror-ism is to pass

more laws, spendmore money, and

sacrifice morecivil liberties.

the argument runs, the police will be able tostop the terrorists before they can kill again.This cycle of terrorist attack followed by con-sideration of antiterrorism legislation hasrepeated itself many times in recent years.

The first major terrorist attack onAmerican soil occurred on February 26,1993. Islamic fundamentalists placed a carbomb in the parking garage beneath theWorld Trade Center. The explosion killed sixpeople and injured more than one thousandindividuals. A few weeks later, then New Yorkcongressman Charles Schumer (D-N.Y.)introduced the Terrorism Prevention andProtection Act of 1993.3 Among other things,the proposed bill would have federalized allviolent offenses, allowed the use of secret evi-dence in deportation proceedings, andincreased the surveillance powers of theFederal Bureau of Investigation.

On April 19, 1995, domestic terrorists con-spired to detonate a truck bomb outside of thefederal office building in Oklahoma City. Theexplosion killed 168 people and injured hun-dreds more. President Bill Clinton responded tothe attack by urging Congress to pass antiterror-ism legislation.4 Within weeks, Sen. Robert Dole(R-Kans.) and Senator Orrin Hatch (R-Utah)introduced the Comprehensive TerrorismPrevention Act of 1995.5 Among other things,the bill would spend $1 billion on variousantiterrorism efforts, place restrictions on the“Great Writ” of habeas corpus, and ban the saleof goods and services to countries that the presi-dent determines are not cooperating fully withU.S. terrorism efforts.6 When President Clintonsigned a version of that bill into law, he pro-claimed that “our law enforcement officials will[now] have tough new tools to stop terroristsbefore they strike.”7

A few months later, the FBI’s top terror-ism official, Robert Blitzer, briefed senatorsabout security precautions for the SummerOlympics in Atlanta, which was only a fewweeks away. Blitzer told a Senate committeethat the FBI had made “security for theupcoming Olympics a priority of the highestorder.”8 Blitzer observed that “there is hardlya government agency in public safety law

enforcement that is not somehow involved inensuring that the 1996 Olympic Games aresafe and secure. . . . The FBI, DEA, ATF, U.S.Secret Service, U.S. Customs Service, and theU.S. Coast Guard are handling federal lawenforcement responsibilities.”9 On July 27,1996, however, a pipe bomb exploded at oneof the outdoor exhibits, killing two peopleand injuring 111 others. President Clintonresponded to the attack by demanding thatCongress quickly pass another antiterrorismlaw. White House spokesperson Mary EllenGlynn told the press, “He’d like to give theFBI more tools so there will be no morebombing like at the Olympics.”10

On September 11, 2001, al-Qaeda terror-ists hijacked four airplanes. The terroristsflew two planes into the World Trade Center,collapsing both office towers. The thirdplane crashed into the Pentagon. The fourthplane crashed in rural Pennsylvania, appar-ently after passengers attempted to wrestcontrol of the aircraft from the hijackers.Those coordinated attacks killed more than3,200 people and injured hundreds more.Two weeks later, President Bush andAttorney General John Ashcroft proposedthe “Antiterrorism Act of 2001.”11 Amongother things, the bill would give the govern-ment a freer hand to conduct searches, detainor deport suspects, eavesdrop on internetcommunication, and monitor financialtransactions. Sen. Trent Lott welcomed theproposal, declaring “We cannot let what hap-pened [on September 11] happen in thefuture.”12 When President Bush signed thebill into law in October, he said the legisla-tion would enable the police “to identify, todismantle, to disrupt, and to punish terror-ists before they strike.”13

In a matter of weeks, however, it becameclear that the new antiterrorism law couldnot alter reality. On December 22, 2001, al-Qaeda terrorist Richard Reid boarded anAmerican Airlines flight from Paris toMiami.14 In mid-flight, Reid tried to igniteexplosives that were hidden in his shoes. Bysheer happenstance, a flight attendantnoticed that Reid had struck a match, so she

3

President Clintonresponded to theattack bydemanding thatCongress quicklypass anotherantiterrorism law.

immediately confronted him about what hewas doing. When Reid assaulted the flightattendant, passengers intervened and over-powered Reid, tying him up until the planecould make an emergency landing in Boston.An FBI agent later testified in court that Reidcould have blown a hole in the airplane, pos-sibly killing all 197 persons on board the air-craft.15 The Reid incident and the anthrax-laden letters that have killed several peopleare the most powerful recent evidence thatthe president and his police agents are notcapable of stopping terrorist attacks.

Breaking the Cycle

Defense and intelligence experts knowthat it is only a matter of time before the nextterrorist attack. In fact, Secretary Rumsfeldwarns that Americans should brace them-selves for attacks “vastly more deadly” thanthe September 11 calamity.16 If recent experi-ence is any guide, policymakers will respondto any such an attack by rushing to enactmore antiterrorism legislation in a desperateattempt to give police and intelligence agen-cies additional powers to stop the killing.That would be a profound mistake. It is vital-ly important for policymakers to break therecurring cycle of enacting antiterrorism leg-islation before the pillars of our constitu-tional republic are completely undermined.When the next terrorist atrocity occurs—andit will occur—policymakers should refrainfrom legislation—at least until they havepaused to deliberate four issues: (a) account-ability, (b) history, (c) reality, and (d) liberty.

Deliberate Accountability before LegislatingBefore policymakers come to the conclu-

sion that there is too much freedom and priva-cy in America and that the police and intelli-gence agencies do not have enough power, theyought to thoroughly examine the question ofhow well the government has utilized the pow-ers that it already wields. This is commonsense. If the government cannot disciplineitself for dereliction, negligence, incompetence,

poor performance, and corruption, why in theworld should it be rewarded with additionalfunds and additional powers? Here are just afew of the issues that Congress should haveinvestigated before it acquiesced to the presi-dent’s demand for antiterrorism legislation fol-lowing the September 11 attack.

• Federal officials in both the intelligenceand law enforcement community wererepeatedly warned that terrorist attacksin the United States were likely. Therespected Israeli journalist Ze’ev Schiffreported that when the former head ofIsrael’s Shin Bet security service warnedAttorney General Janet Reno, FBI direc-tor Louis Freeh, and Central IntelligenceAgency director George Tenet that ter-rorist cells were being set up on U.S. soil,“They looked at him forgivingly, andclaimed that he was exaggerating.”17

• The Department of Justice and the FBIwant to access and monitor the check-ing account activity and e-mail traffic of200 million American citizens, but fed-eral investigators inexcusably failed tomonitor U.S. flight schools for potentialterrorists. Shortly after the September11 attack, FBI director Robert Muellerdescribed news reports that the suicidehijackers had received flight training inthe United States as “news, quite obvi-ously,” adding, “If we had understoodthat to be the case, we would have—per-haps one could have averted this.”Mueller, who had only assumed thedirectorship of the FBI a week earlier,was apparently not yet aware that thebureau had known for years that sus-pected terrorists with ties to Osama binLaden were receiving flight training atAmerican schools.18

• Members of Congress recently heapedpraise on FBI whistleblower ColleenRowley and Enron whistleblower SherronWatkins, but thus far no congressionalcommittee has invited Mary Schneider tothe nation’s capital to tell her story.Although it is now common knowledge

4

If the governmentcannot disciplineitself for derelic-tion, negligence,

incompetence,poor perfor-

mance, and cor-ruption, why in

the world shouldit be rewarded

with additionalfunds and addi-

tional powers?

that al-Qaeda terrorists involved in theSeptember 11 attack used Orlando,Florida, as a staging area, Schneider report-edly tried to blow the whistle on their activ-ity months in advance of the attack.Schneider, a 20-year veteran of theImmigration and Naturalization Service,reportedly warned both the FBI andAttorney General John Ashcroft that aliensconnected with bin Laden were illegallyresiding in the Orlando area. Schneidercame to believe that terrorists were plot-ting an attack on an American target, buther pleas for an investigation fell on deafears. If her explosive allegations are true,one wonders how the Enron whistleblow-er could be called to testify beforeCongress, but not Schneider. After all, thecollapse of the World Trade Center is farmore serious than the financial collapse ofan energy company.19

• After September 11, an invaluable leadon bin Laden’s whereabouts was report-edly compromised when certain sena-tors divulged highly classified informa-tion regarding an intercepted phone callby al-Qaeda terrorists. That lapse injudgment was both astonishing andunpardonable. Capturing or killing binLaden is the key to destroying the al-Qaeda terrorist network. Tipping off theterrorists about our capability to inter-cept their phone conversations, andthus letting bin Laden slip through thefingers of the CIA, put scores ofAmerican lives at risk. One wonderswhat a senator has to do before his col-leagues will institute formal expulsionproceedings or even a censure. To allowsuch irresponsible people to cast a voteon antiterrorism legislation, and to havethem exercise their judgment on thepossible necessity of curtailing the civilliberties of the American people, is noth-ing short of a travesty.20

Columnist George Will once observed thatwhen failures are not punished, failures prolif-erate.21 If our policymakers evade any of the

issues mentioned above, the future of Americaseems quite bleak. It is noteworthy that not asingle employee in the federal government haslost his or her job in the wake of September11.22 While it is possible that no one was trulyat fault, a much more plausible explanation isthat there is a general unwillingness to holdgovernment officials accountable for failure.

Deliberate History before LegislatingHistory should matter. Before policymakers

come to the conclusion that there is too muchfreedom and privacy in America and that thepolice and intelligence agencies do not haveenough power, they should pause to considerhow much respect the federal government hasshown for individual American citizens, the law,and the Constitution. Here are just a few eventsthat should not be soon forgotten.

• The FBI has used its surveillance powersto interfere in domestic politics. Duringthe 1960s and 1970s, the bureau tried toundermine and disrupt the civil rightsmovement and the movement againstthe Vietnam war. In 1964, the bureauwent so far as to attempt to blackmailMartin Luther King in the weeks preced-ing his ceremony to receive the NobelPeace Prize. To thwart King’s risingstature, the FBI threatened to give thenews media evidence of King’s adulterousaffairs if he did not commit suicide.23

• The FBI has given some of its informers alicense to commit crime. The bureau haslooked the other way while sociopathscommitted murders and innocent peoplewere jailed for those crimes.24

• When an FBI sniper was indicted by a stateprosecutor on manslaughter charges, theDepartment of Justice urged the court todismiss the case because “federal lawenforcement officials are privileged to dowhat would otherwise be unlawful if doneby a private citizen.” In other words, homi-cide statutes do not apply to federal policeagents.25

• In 1993, the FBI used tanks to demolisha building containing children. AttorneyGeneral Janet Reno told everyone that

5

One wonderswhat a senatorhas to do beforehis colleagues willinstitute formalexpulsion pro-ceedings or even acensure.

such an operation was necessary because“babies were being beaten” and thetanks were creating “escape routes.”However, a week later, the attorney gen-eral admitted that she had no evidencethat children were being beaten.26

• The Department of Justice has told theSupreme Court that it is perfectly legalfor the government to take propertyaway from a citizen who has doneabsolutely nothing wrong.27

• In 2000, the Department of Justice main-tained that the Second Amendment to theU.S. Constitution does not really guaran-tee the right of citizens to keep and beararms. The government can, in its discre-tion, take guns away from the citizenry.28

• The Tenth Amendment to the U.S.Constitution says that the powers thatare not delegated to the federal govern-ment are reserved to the states, or to thepeople. The Department of Justice, how-ever, has maintained that the federalgovernment’s powers are essentiallyunlimited or “plenary.”29

Lord Acton was correct when he observedthat power tends to corrupt. All too often,government officials come to disdain anylimitations on their power. Policymakersshould carefully consider the lessons of his-tory before they decide to confer more poweron the government.

Deliberate Reality before Legislating In a free society, the police maintain law

and order primarily by reacting to citizencomplaints, investigating crimes that havealready occurred, and then apprehending theculprit. In America, the government is onlyrarely able to “prevent” a crime before thefact. Unlike, say, the secret police in China,our government cannot move against a per-son who has not yet broken the law. Thus,criminal predators can often bide their timefor the most advantageous set of circum-stances conducive to their success. That is,criminals can choose the time, place, and vic-tim. Not surprisingly, to avoid detection,

criminals invariably decide to strike when thepolice are not on the scene.

Because terrorists enjoy the same keyadvantage against our intelligence and lawenforcement agencies, policymakers mustpause before they rush to the conclusion thatmore government power is the “solution.”Even though America has the most powerfulmilitary force in the history of humankind,defense and intelligence experts have beenforced to acknowledge the relative ease withwhich Americans can be attacked. In 1997,Secretary of Defense William Cohen observed:

With advanced technology and asmaller world of porous borders, theability to unleash mass sickness, death,and destruction today has reached afar greater order of magnitude. A lonemadman or nest of fanatics with a bot-tle of chemicals, a batch of plaque-inducing bacteria . . . can threaten orkill tens of thousands of people in asingle act of malevolence.30

The harsh reality was summed up best ina Defense Department Task Force report:“While clearly it would be preferable to pre-vent incidents rather than mitigate them, theUnited States cannot count on prevention.”31

Unlike nuclear weapons, chemical and bio-logical weapons can be fairly easily built,stored, and disseminated. A terrorist canspread biological or chemical agents with anaerosol sprayer from the rooftop of an apart-ment building or by leaving a suitcase in abusy train station or sports arena.

When Attorney General Ashcroft testifiedbefore Congress after September 11, he wasasked whether the expanded powers that hewas seeking would have given the FBI the abil-ity to prevent the attack on the World TradeCenter. Ashcroft conceded that it would bemisleading for him to offer that kind of assur-ance.32 Sen. Patrick Leahy (D-Vt.) was evenmore blunt when he acknowledged:

No one can guarantee that Americanswill be free from the threat of future

6

Policymakersshould carefully

consider thelessons of history

before they decideto confer more

power on the government.

terrorist attacks, and to suggest thatthis legislation—or any legislation—would or could provide such a guar-antee would be a false promise. I willnot engage in such false promises, andthose who make such assertions do adisservice to the American people.33

True enough, but it would also be a gravedisservice to the American people to curtailtheir privacy and liberties for nothing morethan the illusion of increased security.Indeed, if actions speak louder than words, itis telling that President Bush moved essentialgovernment personnel into undergroundbunkers outside of Washington, D.C., toensure the continuation of government ser-vices in the event of a terrorist attack.34 Bushtook that step because he knows that antiter-rorism legislation does not invest him withsupernatural powers that will somehowenable him to prevent an attack on thenation’s capital.

Deliberate Liberty before LegislatingFreedom is the essence of America. Many

people, including President Bush, believethat the al-Qaeda terrorists attacked Americabecause of their disdain for our free society.Unfortunately, in the days and weeks follow-ing the September 11 calamity, PresidentBush pushed several initiatives that severelyundermined freedom in America. Too manyof the men and women who occupy publicoffice only talk about the blessings of liberty.Very few have any deep appreciation for theconditions that are necessary for individualliberty to flourish. For most governmentofficials, freedom is an abstraction that canbe ignored in face of a concrete danger—suchas a truck bomb. Because that worldview per-vades Washington it will be useful to exam-ine how certain antiterrorism provisions andrelated initiatives are having the real, thoughfar less dramatic, effect of undermining thepillars of our constitutional republic.

Before addressing the specifics, one mustfirst recognize both the short-term politicsand the long-term legal implications that are

at work here. When terrorists are able to per-petrate a dramatic, surprise attack, electedofficials spring into action because they wantto help to solve the problem or, at the least,be seen as helping to solve the problem. Asnoted earlier, altering the “balance betweenliberty and security” is invariably viewed asthe “solution” to the terrorist problem. Sen.Russ Feingold (D-Wis.) was the only senatorto vote against President Bush’s proposedAntiterrorism Act of 2001. Feingold hadenough self-confidence to step back from thelegislative details and to take cognizance ofthe long-term implications of continuously“rebalancing” liberty and security. Heexpressed his opposition to the proposed leg-islation in the following terms:

If we lived in a country that allowedthe police to search your home at anytime for any reason; if we lived in acountry that allowed the govern-ment to open your mail; eavesdropon your phone conversations, orintercept your email communica-tions; if we lived in a country thatallowed the government to hold peo-ple in jail indefinitely based on whatthey write or think, or based on meresuspicion that they are up to nogood, then the government wouldno doubt discover and arrest moreterrorists. But that probably wouldnot be a country in which we wouldwant to live. And that would not be acountry for which we could, in goodconscience, ask our young people tofight and die. In short, that wouldnot be America.35

After Feingold cast his lonely vote againstthe popular antiterrorism bill, several senatorstold him privately that they agreed with him,but that they were afraid of being perceived bythe public as being “soft” on terrorism.36

Whatever their motivations, it is the responsi-bility of elected officials to defend Americansfrom foreign aggressors without violating thesafeguards set forth in the Constitution. Thus,

7

Too many of themen and womenwho occupy pub-lic office only talkabout the bless-ings of liberty.Very few have anydeep appreciationfor the conditionsthat are necessaryfor individual lib-erty to flourish.

President Bush’s antiterrorism initiativesmust be closely examined for their necessity,wisdom, and constitutionality.

Bush Seeks to Expand the Power to Arrest. TheFourth Amendment of the Constitution pro-vides, “The right of the people to be secure intheir persons, houses, papers, and effects,against unreasonable searches and seizures,shall not be violated, and no Warrants shallissue, but upon probable cause, supported byOath or affirmation, and particularlydescribing the place to be searched, and thepersons or things to be seized.”

The arrest of a person is the quintessential“seizure” under the Fourth Amendment. Inmany countries around the world, police agentscan arrest people whenever they choose, but inAmerica the Fourth Amendment shields thepeople from overzealous government agents byplacing some limits on the powers of the police.The primary “check” is the warrant applicationprocess. This process requires police to apply forarrest warrants, allowing for impartial judges toexercise some independent judgment withrespect to whether sufficient evidence has beengathered to meet the “probable cause” standardset forth in the Fourth Amendment.37 Whenofficers take a person into custody without anarrest warrant, the prisoner must be broughtbefore a magistrate within 48 hours so that animpartial judicial officer can scrutinize the con-duct of the police agent and release anyone whowas illegally deprived of his or her liberty.38

President Bush and his subordinates haveundermined the Fourth Amendment’s pro-tections in two distinct ways. First, PresidentBush has asserted the authority to excludethe judiciary from the warrant applicationprocess by issuing his own arrest warrants.According to the controversial “militaryorder” that Bush issued on November 13,2001, once the president makes a determina-tion that a noncitizen may be involved in cer-tain illegal activities, federal police agents“shall” detain that person “at an appropriatelocation designated by the secretary ofdefense outside or within the UnitedStates.”39 According to the order, the personarrested cannot get into a court of law to

challenge the legality of the arrest.40 The pris-oner can only file appeals with the officialwho ordered his arrest in the first instance,namely, the president. The whole purpose ofthe Fourth Amendment is to make such aprocedure impossible in America.

Some have defended the constitutionalityof that presidential order because it appliesonly to noncitizens. That argument has somesurface appeal, but it cannot withstandscrutiny. It should be noted that while someprovisions of the Constitution employ theterm “citizens,” other provisions employ theterm “persons.” Thus, it is safe to say thatwhen the Framers of the Constitution want-ed to use the narrow or broad classification,they did so. The Supreme Court has alwaysaffirmed this plain reading of the constitu-tional text.41

Second, President Bush and the FBI havetried to dilute the “probable cause” standard forcitizens and noncitizens alike. The SupremeCourt has repeatedly noted that a person can-not be hauled out of his home on the mere sus-picion of police agents—since that would placethe liberty of every individual into the hands ofany petty official.42But in the days and weeksfollowing September 11, the FBI arrested hun-dreds of people and euphemistically referred tothe group as “detainees.”43

Many of those arrests were perfectly law-ful, but it is also obvious that many were not.The FBI has tried to justify dozens of arrestswith the following argument:

The business of counterterrorismintelligence gathering in the UnitedStates is akin to the construction of amosaic. At this stage of the investiga-tion, the FBI is gathering and pro-cessing thousands of bits and piecesof information that may seeminnocuous at first glance. We mustanalyze all that information, howev-er, to see if it can be fit into a picturethat will reveal how the unseenwhole operates. . . . What may seemtrivial to some may appear of greatmoment to those within the FBI or

8

The prisoner canonly file appealswith the officialwho ordered his

arrest in the firstinstance, namely,

the president. Thewhole purpose of

the FourthAmendment is tomake such a pro-

cedure impossiblein America.

the intelligence community whohave a broader context.44

At bottom, this is an attempt to effectwhat Judge Richard Posner has aptly called“imprisonment on suspicion while the policelook for evidence to confirm their suspi-cion.”45 Since the Supreme Court has repeat-edly rebuffed police and prosecutorialattempts to dilute the constitutional stan-dard of probable cause, that gambit shouldnot be tolerated.46

Bush Seeks to Expand the Power to Prosecuteand Imprison. Article III, section 2, of theConstitution provides, “The Trial of allCrimes, except in Cases of Impeachment; shallbe by Jury.” The Sixth Amendment to theConstitution provides, “In all criminal prose-cutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury.”To limit the awesome powers of government,the Framers of the Constitution designed asystem in which citizen juries stand betweenthe apparatus of the state and the accused. Ifthe government prosecutor can convince ajury that the accused has committed a crimeand belongs in prison, the accused will lose hisliberty and perhaps his life. If the governmentcannot convince the jury with its evidence, theprisoner will go free. In America, an acquittalby a jury is final and unreviewable by statefunctionaries.47

President Bush would like to be able todeny the benefit of trial by jury to nonciti-zens accused of terrorist activities on U.S.soil. Under Bush’s military order, he willdecide who can be tried before a jury and whocan be tried before a military commission.48

Conservative legal scholar Robert Bork, whois widely known for stressing the text of theConstitution and the original intent of thefounders, not only came to the defense ofBush’s military order, but went further andmaintained that that order could and shouldbe revised and extended to American citizensas well.49

The federal government did try peoplebefore military commissions during the CivilWar. To facilitate that process, President

Abraham Lincoln suspended the writ ofhabeas corpus—so that the prisoners couldnot challenge the legality of their arrest orconviction in a civilian court.50 The one casethat did reach the Supreme Court, Ex ParteMilligan (1866), deserves careful attention.51

In Milligan, the attorney general of theUnited States maintained that the legal guar-antees set forth in the Bill of Rights were“peace provisions.”52 During wartime, heargued, the federal government can suspendthe Bill of Rights and impose martial law. Ifthe government chooses to exercise thatoption, the commanding military officerbecomes “the supreme legislator, supremejudge, and supreme executive.”53 Under thatlegal theory, many American citizens werearrested, imprisoned, and executed withoutthe benefit of the legal mode of procedure setforth in the Constitution—trial by jury.

The Supreme Court ultimately rejected thelegal position advanced by the attorney gener-al. Here is one passage from the Milliganruling:

The great minds of the country havediffered on the correct interpretationto be given to various provisions ofthe Federal Constitution; and judicialdecision has been often invoked tosettle their true meaning; but untilrecently no one ever doubted that theright to trial by jury was fortified inthe organic law against the power ofattack. It is now assailed; but if ideascan be expressed in words and lan-guage has any meaning, this right—oneof the most valuable in a free coun-try—is preserved to every one accusedof crime who is not attached to thearmy, or navy, or militia in actual ser-vice. The sixth amendment affirmsthat ‘in all criminal prosecutions theaccused shall enjoy the right to aspeedy and public trial by an impar-tial jury,’ language broad enough toembrace all persons and cases.54

The Milligan ruling is sound. While theConstitution empowers Congress “To make

9

Under Bush’smilitary order, hewill decide whocan be triedbefore a jury andwho can be triedbefore a militarycommission.

Rules for the Government and Regulation ofthe land and naval Forces” and “To providefor organizing, arming, and disciplining, theMilitia,” the Supreme Court ruled that thejurisdiction of the military courts could notextend beyond those people who were actual-ly serving in the army, navy, and militia. Thatis an eminently sensible reading of the con-stitutional text.

President Bush and his lawyers maintainthat terrorists are “unlawful combatants”and that unlawful combatants are not enti-tled to the protections of the Bill of Rights.The defect in the president’s claim is circular-ity. A primary function of the trial process isto sort through conflicting evidence in orderto find the truth. Anyone who assumes that aperson who has merely been accused of beingan unlawful combatant is, in fact, an unlaw-ful combatant, can understandably maintainthat such a person is not entitled to the pro-tection of our constitutional safeguards. Theflaw, however, is that that argument begs thevery question under consideration.

To take a concrete example, suppose thatthe president accuses a lawful permanent res-ident of the U.S. of aiding and abetting ter-rorism. The person accused responds bydenying the charge and by insisting on a trialby jury so that he can establish his innocence.The president responds by saying that “ter-rorists are unlawful combatants and unlaw-ful combatants are not entitled to jury trials.”The president also says that the prisoner isnot entitled to any access to the civilian courtsystem to allege any violations of his consti-tutional rights.55 With the writ of habeas cor-pus suspended, the prisoner and his attorneycan only file legal appeals with the presi-dent—the very person who ordered the pris-oner’s arrest in the first instance!

The Constitution’s jury trial clause is nota “peace provision” that can be suspendedduring wartime. Reasonable people canargue about how to prosecute war criminalswho are captured overseas in a theater of war,but the president cannot make himself thepoliceman, prosecutor, and judge over peo-ple on U.S. soil. In America, the president’s

power is “checked” by the judiciary and bycitizen juries.56

Bush Seeks to Expand the Power to Eavesdrop.In November, 2001, Attorney GeneralAshcroft announced that the Department ofJustice would begin to monitor the conversa-tions of lawyers with their clients in federalcustody.57 The new policy represents anabrupt change from existing practice. Up untilnow, prison facilities have had two sets ofphones for prisoner use. One set is used byordinary visitors to the jail, such as friends andrelatives—and that set of phones is ordinarilymonitored and recorded by government. Theother set of phones is reserved for attorney-client conversations. That set of phones is notmonitored—so that lawyers can confer withtheir clients in private. Under the president’snew policy, the attorney-client privilege, one ofthe oldest privileges for communicationknown to the common law, will now have tomake room for state eavesdroppers.58

The purpose of the attorney-client privi-lege is to encourage full and frank communi-cation between attorneys and their clients.Sound legal advice depends upon a lawyer’sbeing fully informed by a client. Limitationson the power of the state to compel disclo-sures by the attorney gives clients confidencethat conversations with their lawyers willremain confidential. Note, however, that theattorney-client privilege is not absolute. Thegovernment already has the power to wiretapattorney-client conversations—provided thatit has gathered enough evidence to persuadea judge to issue a wiretap order for an attor-ney who appears to be corrupt.59

Although the Bush-Ashcroft eavesdroppinginitiative has a laudable purpose—to stop ter-rorists from using their attorneys to pass usefulinformation to their confederates outside of theprison walls—the policy is disturbing nonethe-less. First, it is noteworthy that the presidentdid not include this initiative in the package ofantiterrorism proposals that he submitted forcongressional approval. Rather than defend thewisdom and necessity for this measure in thelegislative chamber, the president chose tobypass Congress and issue a “rule” with respect

10

The presidentcannot make him-

self the police-man, prosecutor,

and judge overpeople on U.S.

soil. In America,the president’s

power is“checked” by thejudiciary and by

citizen juries.

to the internal operations of federal prisons.The practical effect is that the onus is now uponthe legislature to overturn the new policy bypassing a new bill, a move that will undoubted-ly be vetoed by the president.

Second, the new eavesdropping policybypasses the judiciary. Like the power to arrestand search, the primary “check” on the powerto wiretap is the warrant application process.By requiring the police to seek advanceapproval from a judicial officer, the processallows wiretap applications to be vetted by animpartial judge. In this way, meritorious appli-cations can be separated from fishing expedi-tions. Under the president’s initiative, howev-er, the attorney general retains exclusive deci-sionmaking authority to conduct monitoringwithout being subject to judicial approval,review, or oversight.60

The plea of “necessity” to justify the poli-cy simply does not stand up to scrutiny. Evenin emergency circumstances outside prisonwalls, for example, the law does not dispensewith judicial oversight. Federal law providesthat when there is an emergency situationthat involves “(i) immediate danger of deathor serious bodily injury to any person, (ii)conspiratorial activities threatening thenational security interest, or (iii) conspirator-ial activities characteristic of organizedcrime,” the wire interception may be madewithout an order if there is probable causeand there is judicial approval of the intercep-tion within 48 hours after the interceptionhas occurred, or begins to occur.61 If theorder is denied by the judicial officer, then“the contents of any wire, oral, or electroniccommunication intercepted shall be treatedas having been obtained in violation of thischapter.”62If the attorney general can abideby these strict rules in emergency circum-stances for suspects outside prison walls, hecan surely operate with judicial oversight forsuspects who have already been captured andimprisoned.

Finally, when the new eavesdropping policyis viewed in combination with all of the otherpowers that the president has been seeking, itsbreadth is alarming. It should be noted that

the president would like to be able to monitorthe attorney-client conversations of not onlyconvicted prisoners, but of those who havebeen arrested and are awaiting trial. As dis-cussed above, the president has also sought tolower the legal threshold by which people canbe taken into custody by the police and intelli-gence agencies. Thus, while perhaps technical-ly “legal,” the eavesdropping policy is alarmingwhen it is seen as a part of concerted effort bythe president and his lawyers to aggrandizepower in the executive branch. The strategy isto augment the power to deprive individualsof their liberty, to allow no privacy whatsoever,and to make redress in the court system verydifficult, if not impossible.

The president and his attorney generalhave tried to deflect criticism by stressing thefact that their eavesdropping initiative will belimited to a small group of prisoners andthat certain protocols will be implemented toprotect the rights of prisoners. Those assur-ances may be sincere, but they should notdivert one’s attention from the fact that alegal precedent is being established here. Theplain truth of the matter is that if the presi-dent can have a single prisoner’s conversa-tion with his attorney monitored, the presi-dent can expand his policy tomorrow toinclude all prisoners in federal custody.Similarly, the safeguards that the presidenthas instituted can be altered, modified, orcompletely removed should he (or any one ofhis successors) deem it appropriate.

President Bush’s eavesdropping initiativeis, at best, wrongheaded. It should not bepossible for a single person to strip appre-hended suspects of such a longstanding legalprivilege as attorney-client confidentiality.

Bush Seeks to Expand the Power to Deport.The Fifth Amendment to the Constitutionprovides that no person can be deprived oflife, liberty, or property, without due processof law.” While no alien has a “right” to enterthe United States, once an alien has alreadymade an entry into our country, his constitu-tional status changes. Any person threatenedwith deportation has a constitutional rightto be accorded due process in a fair hearing.63

11

President Bush’seavesdroppinginitiative is, atbest, wronghead-ed. It should notbe possible for asingle person tostrip apprehend-ed suspects ofsuch a longstand-ing legal privilegeas attorney-clientconfidentiality.

President Bush would like to be able toseize and deport people without any hearingwhatsoever. Under the controversial militaryorder, Bush can have people arrested outsideof the judicial process and held incommunica-do at military bases. Another section of thatorder provides: “I reserve the authority todirect the secretary of defense, at anytime here-after, to transfer to a governmental authoritycontrol of any individual subject to thisorder.”64 That means that any person arrestedcould be flown to another country at any timewhere he could possibly then be tortured by aforeign intelligence agency.65 The prisoner isbarred from filing a writ of habeas corpus,which would allow him his “day in court” toperhaps show that there has been a miscar-riage of justice in his particular case.66Thissweeping assertion of presidential power isworrisome because “no society is free wheregovernment makes one person’s libertydepend upon the arbitrary will of another.”67

One should not forget that the power todeport has been abused. American citizenshave been unlawfully deported. 68 Others havebecome pawns in political machinations. Forexample, six Iraqi men who fought againstSaddam Hussein have been fighting bogusdeportation charges that are tantamount toa death sentence should they be forced backto Iraqi territory.69

The federal government has great leewayin establishing the various grounds fordeportation, but the only check on possiblearbitrary and capricious action is the dueprocess guarantee of the Fifth Amendment.The president should respect, not nullify,that guarantee.

Bush and Congress Seek to Expand the Power toCompel Cooperation. Justice Louis Brandeisonce described the right to be let alone as “themost comprehensive of rights and the rightmost valued by civilized men.”70 However, themen and women who serve in the federal gov-ernment hold the opposite point of view. Thefederal government takes the position that itcan coerce innocent people into cooperatingwith its investigations. Since September 11,the federal government has threatened more

than 4,000 business firms, organizations, andindividuals with fines and jail if they do notgive the Department of Justice the informa-tion it demands.71 What is worse is that thefederal government is compelling every sectorof American industry to assist police investiga-tions by systemic surveillance of customersand employees.72 The American tradition ofvoluntary cooperation with law enforcementis being perverted into a system of compulso-ry cooperation.

This pernicious trend began with the BankSecrecy Act of 1970. The Department of Justiceand the Internal Revenue Service convincedCongress that they could launch a more effectiveattack on organized crime if domestic bankscould be made to provide greater evidence offinancial transactions. Under that act, banksmust spy on their customers and report to thepolice any transaction involving more than$10,000. Furthermore, every bank must keep acopy of every check drawn on it or presented to itfor payment. In this way, the police could bolstertheir fight against money laundering.

The Supreme Court upheld the constitu-tionality of the Bank Secrecy Act in a six tothree ruling in 1974.73 The Court found noFourth or Fifth Amendment violation and didnot find the regulatory burden to be unrea-sonable. But Justice Thurgood Marshall tookissue with the Court’s Fourth Amendmentanalysis in a dissenting opinion: “By com-pelling an otherwise unwilling bank to photo-copy the checks of its customers, theGovernment has as much a hand in seizingthose checks as if it had forced a private personto break into the customer’s home or officeand photocopy the checks there.”74 JusticeWilliam O. Douglas expressed his discomfortwith the act by extending the government’slogic beyond banking: “It would be highly use-ful to government espionage to have likereports from all our bookstores, all our hard-ware and retail stores, all our drugstores.These records too might be ‘useful’ in criminalinvestigations.”75 Like Marshall, Douglasbelieved the act to be unconstitutional.

Unfortunately, Justice Douglas’s dissent-ing opinion has proven to be prescient. Since

12

President Bushwould like to beable to seize and

deport peoplewithout any hear-

ing whatsoever.

1974, the federal government has effectivelydeputized the telephone, airline, hotel, andcredit card companies as well as internet ser-vice providers into its network of privateinformers and data gatherers.76 The mostrecent antiterrorism legislation will allow thepolice to compel records from any businessregarding any person—including medicalrecords from hospitals, educational recordsfrom universities, and even records of booksthat have been checked out from the locallibrary or purchased from the bookstore.77

Shortly after the passage of the antiterror-ism law, the Department of Justice started to layplans to deputize lawyers and accountants. Aworking group of Justice Department andTreasury Department officials are formulatingregulations that will require lawyers andaccountants to file “suspicious activity reports”about their clients with various federal agen-cies.78 Clearly, the federal government’s insa-tiable appetite for information is destroying thefreedom and privacy that it was supposed toprotect. The most recent antiterrorism law eventries to suppress the speech of businesspeopleby prohibiting them from telling the press andthe public about any of the government’sdemands, a blatant violation of the free speechclause of the First Amendment.79

There have been some extraordinary legaldevelopments since the September 11calamity: warrantless arrests, military trials,eavesdropping on attorney-client conversa-tions, and using businesspeople to facilitatesystemic surveillance of checking accountsand e-mail. Such expansion of governmentpower has seriously undermined the civil lib-erties of Americans.80 Before our policymak-ers enact additional antiterrorism legislation,they ought to carefully deliberate the extentto which liberty in America has already dete-riorated and whether it is really necessary tosurrender more liberty and privacy.81

The Road Ahead

Policymakers cannot guarantee the safetyof Americans from terrorist attacks because

they cannot control the actions of terrorists.Policymakers do, however, retain completecontrol over the extent of government pow-ers. The adoption of certain policies can limitthe power and scope of government and con-sequently increase the sphere of individualfreedom; other policies can expand the scopeand power of government and thus decreasethe sphere of individual freedom. Becauseadditional attacks on the American home-land are virtually certain, a fundamentalchoice lies ahead with respect to how theongoing terrorism problem is going to beaddressed on the home front. One path willlead inexorably to government dominationand authoritarianism. The other path willkeep America free, if not completely safe.

The Road to AuthoritarianismIf policymakers continue to respond to ter-

rorist atrocities by “enhancing” the power ofgovernment, it is not terribly difficult to dis-cern the trend lines for the next 20 years.Power has been flowing, and will continue toflow, to the federal government and executivebranch in particular. If present trends contin-ue, it is likely that America will drift towardnational identification cards, a national policeforce, and more extensive military involve-ment in domestic affairs. That ought to givepause to people of goodwill from all across thepolitical spectrum—since those are the telltalesigns of societies that are unfree.82

If any president were to propose theissuance of national ID cards, the dissolutionof the state and local police in favor of anational police force, and much greater mili-tary involvement in law enforcement, theproposal would undoubtedly be rejected asun-American. And yet, the federal govern-ment has already been moving relentlesslytoward the realization of those objectiveswithout any meaningful political opposition.

With respect to national ID cards, attorneyand economist Charlotte Twight has document-ed a variety of federal data collection programsthat compel the production, retention, and dis-semination of personal information about everyAmerican citizen.83 Linked through an individ-

13

If present trendscontinue, it islikely thatAmerica will drifttoward nationalidentificationcards, a nationalpolice force, andmore extensivemilitary involve-ment in domesticaffairs.

ual’s Social Security number, these labor, med-ical, educational, and financial databases alreadyempower federal employees to obtain a detailedportrait of any person: the checks he writes, thepolitical causes he supports, and what he says“privately” to his doctor. Enacted in the name of“reducing fraud” and “increasing efficiency,”such programs have exposed most areas ofAmerican life to ongoing scrutiny. SinceAmericans already have Social Security numbersand use drivers’ licenses for purposes of identifi-cation, why not adopt a uniform counterfeit-proof card with biometric identifiers?

Twight warns that such a move wouldmean “metastasizing government control”over society, as individuals, knowing thatthey are being monitored, would start behav-ing as the government wants them to. Lawprofessor Paul Schwartz has also noted theconnection between a government’s capacityto collect information and the erosion ofindividual autonomy: “The effectiveness of[authoritarian] regimes in rendering adultsas helpless as children is in large part a prod-uct of the uncertainty that they instill regard-ing their use of personal information.”84

With respect to a national police force, thefoundation has already been laid. First,Congress has already been funding local lawenforcement and manipulating its prioritiesby attaching an endless number of “strings”to such appropriations. 85 Second, theDepartment of Justice already oversees hun-dreds of permanent “joint task forces” madeup of teams of federal, state, and local policeagents.86 Why stop with half-measures? Whynot end unnecessary duplication, streamlinethe bureaucracy, and centralize control?

Former attorney general and SupremeCourt justice Robert Jackson, for one, vigor-ously opposed the idea of a national policeforce. Jackson prosecuted the Nazi war crimi-nals at Nuremberg, and one of the lessons thathe took away from that experience was thedanger posed by a national police force: “I can-not say that our country could have no centralpolice without becoming totalitarian, but Ican say with great conviction that it cannotbecome totalitarian without a centralized

police force.”87 Once a national police force isestablished and has the power to investigateall manner of offenses, Jackson noted, “in theparlance of the street, [the state] will haveenough on enough people, even if it does notelect to prosecute them, so that it will find noopposition to its policies.”88

With respect to the role of the military,the Posse Comitatus Act of 1878 has longbeen a symbol of America’s commitment tokeeping the military out of domestic lawenforcement.89 Over the last 20 years, howev-er, Congress has created so many exceptionsto the Posse Comitatus Act that it hasbecome a rather feeble limitation on the mil-itary. Why not repeal that law completely?After all, our military special forces arealready training state and local SWAT teams;Army units are already conducting drugraids; and National Guard units have alreadybeen stationed in airport terminals. Whyretain a law from the Civil War era whenAmerica is facing the possibility of a cata-strophic attack from foreign terrorists?90

One problem with tearing down the wallbetween the police and the military is thevery nature of the terrorist threat. The terror-ist problem is not a short-term crisis, but along-term security dilemma. Thus, Americawould very likely witness more Waco-typedisasters if the military becomes involved inroutine policing activities. Policymakersshould not forget that during a 1993 stand-off with a religious community near Waco,Texas, the FBI took the advice of Delta Forcecommanders, using tanks and grenadelaunchers against a building that harboreddozens of men, women, and children. Itturned into the worst disaster in the historyof modern law enforcement—leaving morethan 80 people dead, including 27 children.91

The military mission is very differentfrom the mission of law enforcement. Thejob of a police officer is to keep the peacewhile adhering to constitutional procedures.Soldiers, on the other hand, consider enemypersonnel human targets. Confusing thepolice function with the military functionoften leads to dangerous and unintended

14

Once a nationalpolice force is

established and hasthe power to inves-

tigate all manner ofoffenses, the state“will have enoughon enough people,even if it does notelect to prosecute

them, so that it willfind no opposition

to its policies.”

consequences—such as unnecessary shoot-ings and killings.92

Despite the dangerous implications notedabove, America will likely continue to mud-dle along the road to national ID cards, anational police force, and more militaryinvolvement in domestic affairs. That is a safeprediction because thus far there has been nomeaningful political opposition to thosetrends. There are at least two reasons for theabsence of opposition. First, elected officialswant to be perceived as “problem solvers”and do not want to be perceived as “soft” onterrorism. Second, the path of ID cards, addi-tional federal controls, and involving the mil-itary has some allure to it. It is possible thatAmericans might find a good measure ofsafety by allowing the federal government totightly control our society. But the price forthat security would have come at the expenseof America’s soul. Freedom could no longerbe said to be the essence of America. Americawould instead have been transformed intosomething resembling a benevolent, authori-tarian democracy—a regime not unlike theone found in today’s Singapore.

The Road to Freedom Antiterrorism proposals will emerge in

the wake of every terrorist attack. That muchis certain. Conscientious policymakers willfind themselves on the defensive in a climatethat will be dominated by fear and anger.What can a friend of liberty and privacy dounder such circumstances? It would, ofcourse, be unreasonable for a policymaker toblindly defend every existing policy in placeand never support any bill that mightimpinge upon the civil liberties of theAmerican people. At the same time, however,there ought to be a strong presumption infavor of liberty—and that presumptionshould be overridden by policymakers onlyafter they have carefully deliberated the issuesof accountability, history, reality, and liberty.The central mission of federal government isto defend the lives, liberties, and property ofthe American people from foreign aggres-sors. If the government has a bona fide need

for additional power in order to reasonablyaccomplish that mission, so be it.

However, if recent experience is any guide,one can expect any debate in the aftermath ofan attack to be framed immediately in terms ofwhich civil liberties will have to be sacrificed inorder to wage a more effective fight against theterrorists. In light of the relative ease with whichterrorists can kill Americans, this is a danger-ously misguided approach to the problem.Before policymakers rush to the conclusionthat it is necessary to expand the power of gov-ernment, they should critically examine govern-ment initiatives that may be unnecessary,wrongheaded, or counterproductive. Here are afew policies that could make America moresecure without limiting freedom.

• The federal government should stopplaying the role of world policeman.When U.S. troops are sent on missionsthat have little or nothing to do with ourvital national security interests, themove invariably inflames foreign politi-cal factions that may then wantvengeance. As Richard Betts, director ofnational security studies at the Councilon Foreign Relations, has noted,“Playing Globocop feeds the urge ofaggrieved groups to strike back.”93

• The federal government’s civil defenseprograms are flawed and woefully under-developed. To take one example, insteadof stockpiling the smallpox vaccine, thegovernment should allow the vaccine tobe made widely available to the public.That would allow Americans to takeresponsibility for their own health andsafety and not leave them dependent onthe public health authorities. Advancedistribution might also deter an attacksince the virus cannot spread as rapidly ina vaccinated population. Terrorists tendto probe for weak spots and strike at pop-ulations that are vulnerable.94

• The federal government should abandonits counterproductive war on drugs. It isludicrous to have federal police agentsexpending energy against marijuana

15

Before policymak-ers rush to the con-clusion that it isnecessary toexpand the powerof government,they should criti-cally examine gov-ernment initiativesthat may be unnecessary,wrongheaded, orcounterproductive.

clubs in California when terrorist sleepercells may be on U.S. soil plotting addi-tional attacks. The lesson of alcohol pro-hibition is that gangster organizationsgot rich from black market profits as peo-ple continued to drink. Similarly, thedrug war is channeling billions of dollarsof black market profits into a criminalunderworld occupied by corrupt politi-cians, criminals, and, yes, terrorists. 95

• Federal and state governments shouldstop their inane practice of treating gunowners like hoodlums or loose cannons.For too many years, Americans havebeen told that they should not take anactive part in their own personal safety.The government’s advice to the citizenryhas been a debilitating message ofdependency: “If you are confronted by acriminal, try to call 911. Don’t resist. Letthe police handle it.” The reality is thatterrorists and criminals can strike any-time, anywhere. Gun control policiesleave citizens dependent on governmentagents who cannot possibly protecteveryone all the time. President Bushshould emulate the tough love policy ofColorado sheriff Bill Masters, who tellsthe residents of his county, “It is yourresponsibility to protect yourself andyour family from criminals. If you relyon the government for protection, youare going to be at least disappointed andat worst injured or killed.”96

Implementing the above policy agendawould not only enhance the freedom of theAmerican people, it would also dramaticallyenhance their safety. If the president or mem-bers of Congress take such policy options offthe table as somehow not worthy of consid-eration, friends of liberty and privacy willknow that civil liberties are about to be sacri-ficed in the interest of political expediency,not security.

If sensible policy adjustments are shuntedaside, conscientious legislators can take theoffensive against bombast and ill-conceivedproposals by insisting upon three procedural

safeguards. First, gigantic antiterrorism leg-islative “packages” should be rejected out-right. Omnibus legislation vastly increasesthe chances of a bad proposal finding its wayinto the federal books. If a proposal cannotfind legislative and executive support on itsown merits, it should not become the law ofthe land.

Second, the final legislative vote on each billshould be postponed to ensure calm reflectionand deliberation. Thomas Jefferson urged adelay of one year for any piece of legislation: “Ithink it would be well to provide . . . that thereshall always be a twelve-month between theingrossing a bill & passing it: that it should thenbe offered to it’s passage without changing aword.”97Anticipating the plea of “emergency,”Jefferson stated that “if circumstances shouldbe thought to require a speedier passage, itshould take two thirds of both houses insteadof a bare majority.”98 Before policymakers cometo the conclusion that the American peoplehave too much freedom and privacy and thatthe police and intelligence agencies do not haveenough power, Jefferson’s “twelve-month”seems more than appropriate.

Third, sunset provisions should be incorpo-rated into each bill so that any bill that becomeslaw will expire after a specified time, say, threeyears. If new police powers are truly necessary,they presumably will win the continuing sup-port of both the president and a majority oflawmakers after the passage of time.

If the proponents of antiterrorism legisla-tion cannot abide by these three proceduralsafeguards for liberty and privacy, conscien-tious legislators and citizens will have morethan sufficient grounds to oppose the legisla-tion despite any high-minded rhetoric aboutthe need to “protect the American people.”

Conclusion

The president of the United States wieldsenormous power, but it is sheer folly for any-one to think that he can stop terrorists fromattacking the American homeland. Sinceintelligence and defense experts fully expect

16

Terrorists andcriminals can

strike anytime,anywhere. Guncontrol policies

leave citizensdependent on

governmentagents who can-

not possibly pro-tect everyone all

the time.

more atrocities in the foreseeable future, it isclear that Americans have a stark choice: Wecan either retain our freedom or we canthrow it away in an attempt to make our-selves safe.

This choice must be confronted and notevaded. No one can deny the fact that if thecycle of terrorist attack followed by govern-ment curtailment of civil liberties continues,America will eventually lose the key attributethat has made it great, namely, freedom. AsSecretary Rumsfeld has warned, we should becareful not to “allow terrorism to alter ourway of life.”99 It is therefore both wise andimperative to address the terrorist threatwithin the framework of a free society. Thatmeans taking the battle overseas to the ter-rorist base camps and killing the terroristleadership. Here at home, it means resistingthe implementation of a surveillance state.This course of action is, admittedly, fraughtwith danger. Innocent people at home andbrave soldiers abroad will lose their lives tothe barbaric forces of terrorism, but they willat least have died honorably as free people.

Everyone wants to be safe, secure, and free,but such a desire denies the reality of our cir-cumstances. In this dangerous world, free-dom is a precious thing that must be vigor-ously defended. Anyone who is not preparedto face down the enemies of freedom withsteely determination should seek shelter inthe wilderness or outside of America com-pletely. Freedom is not, was not, and willnever be, a free good. Anyone who wants itmust be prepared to defend it. And defend-ing it necessarily carries the risk of seriouslybodily injury or death. A free and indepen-dent people must take responsibility for theirown safety and deal with their vulnerabilityin a mature fashion. A free and independentpeople should not expect supernatural pow-ers from their president.

NotesThe author wishes to acknowledge two works fromwhich he has benefited greatly: Jeff Snyder’s Nationof Cowards: Essays on the Ethics of Gun Control (St.

Louis: Accurate Press, 2001) and James Bovard’sFreedom in Chains: The Rise of the State and the Demiseof the Citizen (New York: St. Martin’s, 1999). Theauthor also thanks Elizabeth Wang for her researchassistance on the section pertaining to governmentaccountability (or the lack thereof).

1. Quoted in Michael Kranish, “Attack onAmerica,” Boston Globe, September 12, 2001.

2. See Robert Burns, “Defense Chief Warns ofThreats Far Deadlier than Sept. 11 Attacks,”Associated Press, January 31, 2002. Of course, theuse of the military should be measured. See IvanEland, “Robust Response to 9/11 Is Needed butPoking the Hornets’ Nest Is Ill-Advised,” CatoForeign Policy Briefing no. 69, December 18, 2001.

3. H.R. 1301, 103rd Congress, 1st session.

4. John F. Harris, “Clinton Lashes Out atTerrorists, Seeks Expanded Powers,” WashingtonPost, April 24, 1995.

5. S. 735.

6. See Benjamin Civiletti Jr. and Elliott Richardson,“The Constitution on Death Row,” New York Times,March 18, 1996. See also Stephen Halbrook,“Terror Law Trap for Gun Owners?” WashingtonTimes, March 14, 1996; Robert Cottrol and GlennReynolds, “Greasing the Skids at the Start of DeathRow,” Washington Times, April 1, 1996.

7. Statement on Signing the Antiterrorism andEffective Death Penalty Act of 1996, April 24, 1996.

8. “Olympics and the Threat of Terrorism,” JointStatement of Robert M. Blitzer, Chief, DomesticTerrorism/Counter Terrorism Planning Section,National Security Division, Federal Bureau ofInvestigation and J. Gilmore Childers, SpecialCounsel for the Olympics, Testimony before theSenate Judiciary Committee, June 11, 1996.

9. Ibid.

10. Quoted in “Clinton Presses for Anti-terrorismTools,” CNN Interactive, July 29, 1996. See also JohnF. Harris and John E. Yang, “Anti-Terror Bills Pushedby Clinton,” Washington Post, July 30, 1996.

11. As the weeks passed, the bill was both revisedand renamed. Ultimately, the bill was entitled the“Uniting and Strengthening America byProviding Appropriate Tools Required toIntercept and Obstruct Terrorism (USA PATRI-OT) Act of 2001.” P.L. 107-56.

12. Quoted in Robin Toner, “Some Foresee a SeaChange in Attitudes on Freedoms,” New York

17

Times, September 15, 2001.

13. Remarks by the President at Signing of thePatriot Act Anti-Terrorism Legislation, October26, 2001.

14. Pam Belluck, “Crew Grabs Man; ExplosiveFeared,” New York Times, December 23, 2001; J. M.Lawrence, “Accused Shoe Bomber PleadsInnocent to Terror Charges,” Boston Herald,January 19, 2002.

15. Pam Belluck and Kenneth Chang, “ShoesWere a ‘Homemade Bomb,’ FBI Agent Says,” NewYork Times, December 29, 2001.

16. Quoted in Burns. See also James Risen,“Qaeda Still Able to Strike the U.S., Head of CIASays,” New York Times, February 7, 2002.

17. Quoted in Ze’ev Schiff, “America First,”Ha’aretz, October 5, 2001. See also Fareed Zakaria,“The Failures That Led to Sept. 11,” WashingtonPost, January 15, 2002; Dan Thomasson,“Investigating Intelligence Lapses,” WashingtonTimes, January 5, 2002.

18. Mueller is quoted in Steve Fainaru and JamesV. Grimaldi, “FBI Knew Terrorists Were UsingFlight Schools,” Washington Post, September 23,2001. See also Kevin Cullen and Ralph Ranalli,“Flight School Says FBI Trailed Suspect Prior toHijackings,” Boston Globe, September 18, 2001;and Michael Isikoff, “Unheeded Warnings,”Newsweek , May 20, 2002.

19. See Dan Eggen, “FBI Whistle-Blower AssailsBloated Bureaucracy,” Washington Post, June 7,2002; Pedro Ruz Gutierrez, Roger Roy, and JimLeusner, “Investigation Finds a Web of OrlandoTies; Men with Possible Links to HijackingSuspects Found Central Florida a Good Place toHide,” Orlando Sentinel, September 23, 2001; andBob Norman, “The INS’s Mary SchneiderWarned of the Terrorist Threat, But NobodyListened,” New Times Broward-Palm Beach ,November 8, 2001. The Merit Systems ProtectionBoard has issued a ruling that the INS had unlaw-fully retaliated against Schneider for her whistle-blowing activity. See Schneider v. Department ofJustice, Docket Number: AT-1221-00-0263-W-2(November 16, 2000) (opinion on file with theauthor). Note also Dan Eggen and Cheryl W.Thompson, “Angry Bush Orders Probe of‘Inexcusable’ INS Action,” Washington Post, March28, 2002 (reporting a separate INS lapse relatingto the terrorists).

20. See John Diamond and Jill Zuckman, “Leak ofCIA Data Angers Officials; Sen. Hatch DeniesRevealing Secrets,” Chicago Tribune, September 14,

2001; Todd Purdum and Alison Mitchell, “Bush,Angered by Leaks, Duels with Congress,” NewYork Times, October 10, 2001. Article I, section 5,of the Constitution provides, “Each House maydetermine the Rules of its Proceedings, punish itsMembers for disorderly Behaviour and, with theConcurrence of two thirds, expel a Member.”

21. George F. Will, “L.A. Police: Time for anAccounting,” Washington Post, March 13, 1991.

22. See Deroy Murdock, “Status Quo: HeadsShould Have Rolled Six Months Ago,” NationalReview Online , March 15, 2002.

23. See Richard Gid Powers, Secrecy and Power(New York: Free Press, 1987), pp. 415–22. See alsoMorton Halperin, Jerry Berman, Robert Borosage,and Christine Marwick, The Lawless State (NewYork: Penguin Books, 1976), pp. 61–89.

24. See “The FBI’s Dirty Little Secret,” 60 Minutes,January 27, 2002. See also Ralph Ranalli, DeadlyAlliance: The FBI’s Secret Partnership with the Mob(New York: HarperCollins, 2001).

25. Department of Justice lawyer is quoted in DavidKravets, “Appeals Panel Hears Ruby Ridge Case,”Associated Press Online, December 20, 2000.

26. See Timothy Lynch, “No Confidence: AnUnofficial Account of the Waco Incident,” CatoInstitute Policy Analysis no. 395, April 9, 2001, pp.4–5.

27. See Brief for the United States, Bennis v. Michigan,516 U.S. 442 (1996). See also Robyn Blumner,“Moving One Step Closer to a Police State,” St.Petersburg Times, March 17, 1996; Roger Pilon,“Forfeiting Reason,” Regulation 19, no. 3 (1996).

28. Quoted in Raymond N. Haynes, “SecondAmendment at Stake in Appellate Case,” LosAngeles Metropolitan News-Enterprise, June 27, 2000.

29. In oral argument before the Supreme Court,Solicitor General Drew Days stated, “Congresswas legislating for the entire Nation pursuant toits plenary powers under the Constitution.”Proceedings before the Supreme Court of theUnited States, United States v. Lopez, Case no. 93-1260, Tuesday, November 8, 1994, official tran-script, p. 4

30. U.S. Department of Defense, Proliferation:Threat and Response (Washington: GovernmentPrinting Office, November 1997), p. iii.

31. The Defense Science Board, 1997 Summer StudyTask Force on DoD Responses to Transnational Threats,vol. 1, final report, October 1997 (Washington:

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Office of the Under Secretary of Defense forAcquisition and Technology), p. 48.

32. Ashcroft testified, “It’s impossible to say thathad we had every one of these provisions, that wewould have avoided the attack.” Hearing of theSenate Judiciary Committee, September 25, 2001.

33. Patrick Leahy, Congressional Record, October25, 2001.

34. See Amy Goldstein and Juliet Eilperin,“Congress Not Advised of Shadow Government,”Washington Post, March 4, 2002.

35. Statement of U.S. Senator Russ Feingold onthe Anti-Terrorism Bill, October 25, 2001.

36. Robert E. Pierre, “Wisconsin Senator Emergesas a Maverick,” Washington Post, October 27, 2001.

37. See McDonald v. United States, 335 U.S. 451,455-56 (1948).

38. See County of Riverside v. McLaughlin, 500 U.S.654 (1988).

39. Bush Military Order, November 13, 2001,Section 3(a).

40. Section 7(b)(2) of the Military Order provides,“the individual shall not be privileged to seek anyremedy or maintain any proceeding, directly orindirectly, or to have any such remedy or proceed-ing sought on the individual’s behalf, in (i) anycourt of the United States, or any State thereof.”

41. See Zadvydas v. Davis, 121 S.Ct. 2941, 2500-2501 (2001); Yick Wo v. Hopkins, 118 U.S. 356(1886); Wong Wing v. United States, 163 U.S. 228(1896). Noncitizens have always benefited fromthe safeguards of the Fourth Amendment. See AuYi Lau v. INS, 445 F.2d 217 (1971); Illinois MigrantCouncil v. Pilliod, 540 F.2d 1062 (1976).

42. See Johnson v. United States , 333 U.S. 10, 13–14(1948).

43. See Elizabeth Neuffer, “Judge Says N.J. Can’tHide ID’s of People in Custody,” Boston Globe,March 27, 2002; and Russ Feingold, “Name theDetainees,” Washington Post, December 23, 2001.

44. Quoted in Amy Goldstein, “A Deliberate Strategyof Disruption,” Washington Post, November 4, 2001.

45. Llaguno v. Mingey, 763 F.2d 1560, 1568 (1985).

46. See Beck v. Ohio, 379 U.S. 89 (1964); Wong Sunv. United States, 371 U.S. 471 (1963).

47. See Timothy Lynch, “We All Lose When

Judges Overreach,” Los Angeles Times , January 24,2000.

48. See William Safire, “Kangaroo Courts,” NewYork Times, November 26, 2001.

49. Robert H. Bork, “Having Their Day in (aMilitary) Court,” National Review, December 17,2001. But see Robert A. Levy, “Don’t Shred theConstitution to Fight Terror,” Wall Street Journal,November 20, 2001; and Robert A. Levy,“Misreading ‘Quirin,’” National Law Journal,January 14, 2002.

50. See William H. Rehnquist, All the Laws but One(New York: Knopf, 1998), pp. 11–25.

51. Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

52. Rehnquist, p. 121.

53. Ibid.

54. Milligan, pp. 122–23 (emphasis in original).

55. Because the president’s military order immediate-ly became mired in controversy, his lawyers havebacked away from what that order actually says. Forexample, the Justice Department denies any attemptto suspend habeas corpus. That denial is not persua-sive. See Section 7(b)(2) of the Bush military order.

56. See Timothy Lynch, “Testimony before theSenate Judiciary Committee on MilitaryTribunals,” December 4, 2001.

57. See George Lardner Jr., “U.S. Will Monitor Callsto Lawyers,” Washington Post, November 9, 2001.

58. See Upjohn v. United States, 449 U.S. 383, 389(1981). See also State v. Quattlebaum , 527 S.E.2d105 (2000).

59. See 18 U.S.C. section 2518.

60. See Comments of the National Association ofCriminal Defense Lawyers on the AttorneyGeneral’s Order Regarding Monitoring ofConfidential Attorney-Client Communications.

61. See 18 U.S.C. section 2518.

62. Ibid.

63. See Landon v. Plasencia, 459 U.S. 21 (1982). Seealso Ludecke v. Watkins, 335 U.S. 160 (1948) (Black,J., dissenting).

64. Bush Military Order, November 13, 2001,Section 7(e).

65. See Rajiv Chandrasekaran and Peter Finn,

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“U.S. Behind Secret Transfer of Terror Suspects,”Washington Post, March 11, 2002.

66. As noted previously, the Bush administrationdenies that it has attempted to suspend habeascorpus. The text of the military order, however,speaks for itself. See Section 7(b)(2).

67. Shaughnessy v. Mezei, 345 U.S. 206, 217 (1953)(Jackson, J., dissenting).

68. See, for example, “Born in the U.S.A.—ButDeported,” San Francisco Chronicle, October 22, 1993.

69. See James Woolsey, “Iraqi Dissidents Railroaded—by U.S.,” Wall Street Journal, June 10, 1998.

70. Olmstead v. United States, 277 U.S. 438, 478(1928) (Brandeis, J., dissenting).

71. See Jim McGee, “In Federal Law Enforcement,‘All the Walls Are Down,’” Washington Post,October 14, 2001.

72. See Timothy Lynch, “The Ominous Powers ofFederal Law Enforcement,” Cato Handbook for Congress(Washington: Cato Institute, 1999), pp. 175–84.

73. California Bankers Association v. Shultz , 416 U.S.21 (1974).

74. Ibid., pp. 94–95 (Marshall, J., dissenting).

75. Ibid., pp. 84–85 (Douglas, J., dissenting).

76. See Lynch, “Ominous Powers of Federal LawEnforcement.” See also Barry Steinhardt, “NewLegislation Authorizes Wholesale Invasion ofPrivacy,” St. Louis Post-Dispatch, November 5, 1996.

77. Patriot Act, Title II, section 215.

78. “Justice Eyeing Attorneys, Accountants forNew Anti-Money Laundering Duties,” CriminalLaw Reporter 70 (February 6, 2002): 393.

79. See Nat Hentoff, “Big Brother in the Library,”Washington Times, February 25, 2002.

80. For a succinct summary, see “JusticeDeformed: War and the Constitution,” editorial,New York Times , December 2, 2001.

81. Bovard. See also Paul Craig Roberts andLawrence M. Stratton, The Tyranny of Good Intentions(Roseville, California: Prima Publishing, 2000).

82. See Roy C. Macridis, Modern Political Regimes:Patterns and Institutions (Little Brown, 1986), pp.13–14. See also Testimony of David B. Kopel andStephen Halbrook before the House Committee

on the Judiciary, Subcommittee on Crime, October5, 1994, on the use of the National Guard inDomestic Law Enforcement.

83. Charlotte Twight, Dependent on D.C.: The Rise ofFederal Control over the Lives of Ordinary Americans(New York: St. Martin’s Press, 2002), pp. 235–76.

84. Quoted in ibid., p. 236. See also WilliamSafire, “Threat of National ID,” New York Times,December 24, 2001.

85. Journalist Ted Gest writes, “By the dawn of thetwenty-first century, the Justice Department washanding out more than $5 billion in aid each year.Lower levels of government came to depend on itfor much of their justice system expansion andinnovation.” Crime and Politics: Big Government’sErratic Campaign for Law and Order (OxfordUniversity Press, 2001), pp. 1, 250. See also UnitedStates v. Nathan, 1998 U.S. Dist. LEXIS 15124; andGene Healy, “There Goes the Neighborhood,” CatoInstitute Policy Analysis no 440, May 28, 2002(describing federal program designed to bolsterfirearm offense prosecutions locally).

86. The FBI has more than 170 “Safe Street” taskforces around the country; the DEA oversees ahundred of its own task forces with state and localpolice. See Gest, pp. 80–81; Jim McGee and BrianDuffy, Main Justice (New York: Simon and Schuster,1996), p. 107. This trend is likely to accelerate incoming years. Shortly after the September 11attacks, Assistant FBI Director KathleenMcChesney said the bureau was working withmajor police departments on 56 terrorism taskforces throughout the country. See Bill Miller andPaul Duggan, “Security Worries Bring a CostlyShift in Priorities,” Washington Post, February 12,2002; and Michael E. Ruane, “Attorneys HeadLocal Terrorism Task Forces,” Washington Post,September 23, 2001. Furthermore, Congress andfour Supreme Court justices have already indicatedsupport for the notion that the federal governmentcan commandeer local police personnel. See Printzv. United States, 521 U.S. 898 (1997) (Stevens, Souter,Ginsburg, Breyer, JJ., dissenting).

87. Robert H. Jackson, The Supreme Court in theAmerican System of Government (Cambridge:Harvard University Press, 1955), p. 70.

88. Ibid., p. 71. Former Attorney General EdwinMeese has also decried the expanding role of thefederal government in everyday law enforcement.See Edwin Meese III, “Big Brother on the Beat:The Expanding Federalization of Crime,” TexasReview of Law and Politics 1 (1997): 1. See also JohnS. Baker Jr., “Nationalizing Criminal Law: DoesOrganized Crime Make It Necessary or Proper?”Rutgers Law Journal 16 (1985): 495.

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89. See Diane Cecilia Weber, “Warrior Cops: TheOminous Growth of Paramilitarism in AmericanPolice Departments,” Cato Institute BriefingPaper no. 50, August 26, 1999.

90. See Vernon Loeb, “Review of Military’sDomestic Role Urged,” Washington Post, October 5,2001.

91. See Timothy Lynch, “No Confidence: AnUnofficial Account of the Waco Incident,” CatoInstitute Policy Analysis no. 395, April 9, 2001.See also David B. Kopel and Paul H. Blackman, NoMore Wacos (Amherst, New York: Prometheus,1997), p. 86.

92. Weber.

93. Richard K. Betts, “The New Threat of MassDestruction,” Foreign Affairs , January/February1998, p. 26. See also Ivan Eland, “Protecting theHomeland: The Best Defense Is to Give NoOffense,” Cato Institute Policy Analysis no. 306,May 5, 1998.

94. See Veronique de Rugy and Charles V. Peña,“Responding to the Threat of SmallpoxBioterrorism: An Ounce of Prevention,” CatoInstitute Policy Analysis no. 434, April 18, 2002;and Eric R. Taylor, “Are We Prepared forTerrorism Using Weapons of Mass Destruction?”Cato Institute Policy Analysis no. 387, November27, 2000.

95. See “U.S. Raid Sets Off Protests,” New YorkTimes, February 13, 2002; Joseph D. McNamara,“The Defensive Front Line,” Regulation, Winter2001; Gary E. Johnson, “Another Prohibition,

Another Failure,” New York Times, December 30,2000; William F. Buckley, Jr., et al. “The War onDrugs is Lost,” National Review , February 12, 1996.For book length treatment, see Timothy Lynch,ed., After Prohibition (Washington: Cato Institute,2000); Steven Duke and Albert Gross, America’sLongest War (New York: G.P. Putnam’s Sons,1994); and Bill Masters, Drug War Addiction (St.Louis: Accurate Press, 2002).

96. Masters, p. 119. The federal government shouldallow airline pilots to carry firearms and statesshould enact concealed carry laws. See John R. LottJr., “Only Guns Can Stop Terrorists,” Wall StreetJournal, September 28, 2001; Dave Kopel andCaptain David Pelteys, “Making the Air Safe forTerror,” National Review Online, September 14,2001; Jeffrey R. Snyder, “Fighting Back: Crime, Self-Defense, and the Right to Carry a Handgun,” CatoInstitute Policy Analysis no. 284, October 22, 1997;and Daniel D. Polsby, “The False Promise of GunControl,” Atlantic Monthly, March, 1994.

97. Thomas Jefferson, Letter to James Madison,December 20, 1787, in Thomas Jefferson: Writings(New York: Library of America, 1984), p. 918.

98. Ibid. In 1994, House Republicans adopted asimilar proposal, requiring a three-fifths vote toincrease taxes. See “House GOP Caucus OKs 60%Rule to Raise Taxes,” Baltimore Sun, December 8,1994.

99. Quoted in Daniel Patrick Moynihan,“Ethnicity Now,” Washington Post, September 16,2001. See also Donald Devine, “Well-TimedPentagon Briefing,” Washington Times, September25, 2001.

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