Liberty And Order: A Clear But Delicate Balance

Liberty And Order: A Clear But Delicate Balance

October 02, 2001

In Defense of Freedom, an ad hoc group ("coalition" was thought to imply too much chumminess) of 130 organizations of wildly v

Delong Op-Ed in National Review Online

In Defense of Freedom, an ad hoc group ("coalition" was thought to imply too much chumminess) of 130 organizations of wildly varying basic views recently released a 10-point statement on the importance of defending civil liberties. Unanimity was possible only because the statement was all generalizations. "We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty," and so on.

These lofty sentiments are universally shared, but they provide little specific guidance. Suppose five people with Middle Eastern names board an airplane and the guard looks extra at their bags — racial profiling or common sense? The FBI wants wiretaps to cover a person rather than a single telephone — minor adaptation to the wireless era or octopus-like expansion of power? Should information on financial transactions collected by the government to cut off economic support to terrorists be passed on to the IRS or the drug enforcers? None of these issues were dealt with at the group's press conference, which was wise, since the occasion would have dissolved in mutual antipathies.

When not overly general, discussion tends to be ensnared in minutiae of civil-liberties jurisprudence. Constitutionally, the government can tap telephone calls only with a warrant issued upon "probable cause." However, it can upon mere suspicion install devices to capture the telephone numbers dialed. So how should capture devices be used on e-mail, where they pick up more than just the telephone numbers? Should the government get the deep link? The subject line? The issue is hotly debated.

A prime reason for the oscillation between the hopelessly abstract and the numbingly specific is that the authorities are charged with two different tasks, and, to anyone of common sense, the balance between liberty and order is different in each context.

One task is the investigation of crimes such as the recent attacks. This is a criminal case, and the normal principles apply — however horrendous the crime, it is as important that the innocent not be punished as that the guilty be called to account. Even here, however, our principles begin to bend. What might be regarded as probable cause for a warrant in the case of another crime, even a serious one, is not necessarily the same as probable cause in this case, as any sensible judge deciding on a warrant would recognize.

A second task is a combination of the prevention of further attacks and conduct of foreign affairs. We are at war, but we are having a problem figuring out who with. It is the job of the security agencies to find out. We also have good reason to believe that our foe is planning further actions. Most of us would rather not die, and if capturing the deep links on e-mails will save us, we would like to get the information, and be damned to minutiae of civil-liberties law. As anyone who did not go to law school understands immediately, prevention presents different issues than does prosecution.

What one thinks of any proposal depends on which function one has in mind. For example, civil-liberties groups are appalled that the FBI wants information on students who are from the Middle East or have had flight training. In the context of prevention, collecting such information is a sensible quick screen. But one's attitude changes if the effort turns into a dragnet for minor criminal violations, or the beginning of systematic surveillance.

Clearly, at the moment we need to focus on prevention, but we need — and lack — both legal doctrines and law-enforcement practices that recognize the extraordinary nature of the situation, and that allow some information to be collected and used only for prevention, or, if used for prosecution at all, used only in the context of terrorism.

The first need is for the government to recognize that prevention is indeed a different and special function, a state of mind which is not so far evident. For example, analogizing the antiterrorist effort to other criminal-justice "wars," such as the War on Drugs, is a mistake. How can one trust people who are indifferent to the distinction between preventing terrorism and preventing pot, or who refuse to recognize what a civil-liberties disaster that war is?

Nor has the government recognized the importance of keeping the law-enforcement community from using terrorism to expand its powers generally. The first-draft antiterrorist bill would have expanded asset forfeiture, which is already a cesspool of corruption, in all criminal cases, regardless of the connection to terrorism. The draft would also have made into special terrorist offenses some crimes that have nothing to with terrorism, such as illicit computer entry or firearms violations.

We also need to focus on institutional competence. Anyone who has worked for the government knows that every agency assumes its own competence and dedication. All failures are due to insufficient power or money. A crisis provides the chance to get more of both, immediately, and old wish lists are promptly resurrected.

This dynamic is already operating. FBI personnel were aware of suicide bombings in Israel, in possession of multiple reports of people connected with terrorist cells taking flight lessons, fully informed of a 1995 plot to blow up a number of airliners, and even familiar with the Tom Clancy novel is which a kamikaze pilot crashes an airliner into the Capitol. Yet officials given a specific report from a flight school that a man with known links to terrorists wanted lessons on how to steer a 767, but not to take off or land, "had no context in which his odd request made sense," according to the Washington Post.

The bureau's immediate response to the disaster is that it needs more driftnet power to collect more information about e-mail, computer keystrokes, or encrypted messages, and needs to shed irksome restrictions on warrants and wiretaps. This is unpersuasive, when the agency cannot coordinate and process what it already has.

Deep concern about the basic competence of other agencies is also in order. The FBI had Hanson but the CIA had Aldrich Ames. The CIA just revealed that the head of its Cuban desk was a spy. The INS cannot account for dozens of computers, including many holding secret information, an announcement that tracks a similar confession by the FBI a few months ago. The former head of the FAA gave the familiar "who could have imagined it?" to the use of an airliner as a bomb.

Again, emergency prevention powers may be needed; we are stuck with the organizations we have, and prevention is urgent. But nothing long term should be granted until there has been thorough organizational reform. Any new power should be limited by time and use restrictions.

A focus on prevention also highlights a need for error correction. For example, it is clear that people of Middle Eastern descent, especially non-citizens, will receive closer attention. This is common sense, not racial profiling. If the IRA becomes active in the U.S., the Irish will get special scrutiny.

We can fairly ask those subjected to this to tolerate it. But there is a quid pro quo. They must be treated courteously, efficiently, and apologetically, not only because of the demands of human decency and democratic values, but out of pragmatism. Middle Easterners are vital to the struggle because of their special knowledge. Many are in the U.S. because they prefer this society to that of their origin, and their experience makes them acutely aware of the stakes.

Those who get caught in the net unjustly should also be compensated generously for any harm they suffer. If the government holds someone as a material witness, all right — but pay his salary to his family. And if it ruins his business, pay him for it. Continuing judicial review of detention should ensure that investigators do not inhume their mistakes in jails.

An interesting parallel is Korematsu, the Supreme Court case upholding the government's 1942 order that Japanese Americans leave the West Coast. One can make a case that, contrary to all respectable opinion, the case was rightly decided. But a large reservation is necessary. Largely due to the dynamics of bureaucracy, the order was not rescinded even when it became obvious to the most cretinous both that Japan did not have the logistics to invade the U.S. and that any security risks in the evacuee population had been identified. The evacuees were not compensated for massive financial losses, and their welfare became a low-priority during the war, which left many of them stuck in internment camps.

These failures do not fit into the formal categories of the law, so they are never regarded as violations of civil liberties. All focus has been on the original order, as if once that is found to be valid the legal system has no further interest. But the subsequent failures, much more than the original decision, are cause for national embarrassment. A focus on prevention would emphasis that power need not be all or nothing; its exercise can be made highly conditional on ameliorating any injustices.

At a recent discussion, one participant commented: "I hope all of you who are so concerned about the details of civil liberties are aware that we are about one incident away from having very few." He is right, which makes it imperative that we hunt down and kill every vapid cliché and get serious about protecting civil liberty.

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