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Liberty, Security, and the USA PATRIOT

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Liberty, Security, and the USA PATRIOT ,. CONFRONTING TERROR 9/1 I and the Future of American National Security Encounter Books h-- New York • London I FEAR I prohibits a President from acting, or which clearly defines the manner in which he must act, if we are to remain a "nation of laws and not of men," the President must be bound to abide by the law, even if he does not wish to. liberty, security, and the There are remedies for a President who honestly believes the law unduly limits his ability to carry out his duty to protect the USA patriot act nation. He can seek to have the law amended. Ifhe is persuasive­ and most Presidents are-Congress will agree and change the law. The President can challenge the law in the courts. Because most federal judges are overly deferential on matters of national security, the President is more likely than not to prevail. But to sanction a President's defiance of law, a treaty ratified by the Senate, or a clear provision in the Constitution, would openly invite despotism, albeit benign. It undermines the founda­ tions of our heritage and history and weakens the very fabric of freedom that is our Constitution. No fear, no risk, and no enemy, no matter how powerful or insidious, is worth that. And no Presi­ dent, no matter how well-intentioned, should be permitted to place himself above the law or the Constitution. Unfortunately, we have traveled far down this road since September II, zoor; but, I hope and pray, not so far that we cannot begin to reverse course and reconnect with that "constitutional road" identified for us by James Madison in 1788.15 INTRODUCTION At the time of this writing, nearly a decade has passed since the 9/r r attacks, and fortunately our terrorist enemies have not suc­ cessfully engaged in any large-scale attacks on American soil since. This is a testament to the remarkable efforts of an alert citizenry and of law enforcement, intelligence, and homeland security personnel. The hard work, dedication, and increased coordination have been greatly aided by the tools, resources, and 186 I LIBERTY, SECURITY, AND THE USA PATRIOT ACT I I CONFRONTING TERROR I guidance provided by the Uniting and Strengthening America by security enables freedom, rather than competes against it. Thus, Providing Appropriate Tools Required to Intercept and Obstruct searching for a "balance" between liberty and security is counter­ Terrorism Act (USA Patriot Act). productive because such an approach is based on a false dichot­ Proposed less than a week after the terrorist attacks of 9h I omy. It is the function of security to safeguard liberty. Unless it and enacted a month later, the Patriot Act is among the more does, it should not be undertaken. important national defense legislative measures in American his­ The essential issue Americans face today is not a trade-off tory. The act enables government to combat a protracted and dif­ between security and liberty, but rather an inquiry into what ficult war against those who wish to rob us of our way of life-a liberty entails, and how security is best utilized to protect that way of life defined by freedom. At the same time, the Patriot Act liberty. Perhaps Edmund Burke said it best: "The only liberty constrains attempts by governmental actors to extend the gov­ I mean is a liberty connected with order; that not only exists ernment's reach inappropriately. along with order and virtue, but which cannot exist at all without them."' In other words, true liberty is by necessity an ordered liberty. The stability and legitimacy essential for a government SECURING LIBERTY under law can only be obtained through the maintenance of this Since the 91I I attacks, Americans have been told that a choice symbiotic relationship. must be made between security and liberty. Frequently, it is sug­ Consider liberty without order. Absent order, liberty is an gested that there is a necessary balancing act between individual unbridled license allowing men to do as they choose. Liberty liberty and security, where enhancement of one is only possible at without order is unstable, and arguably illegitimate. In such significant cost to the other. In the search for this elusive balance, a world, the weak must submit to the will of the strong. One commentators often cite Benjamin Franklin's dictum that those man's expression of his desires deprives another of his freedom. who "give up essential liberty to obtain a little temporary safety True, legitimate liberty is achievable only in an ordered society, deserve neither liberty nor safety." Liberty (let alone "essential in which rules and laws govern and limit the behavior of men. liberty") is not to be traded for safety (let alone "a little temporary Just as liberty without order is illegitimate and unstable, so safety"). At its core, Franklin's maxim is correct. Security is not too is order without liberty. A society of order without liberty is an end in itself, but rather a means to the greater end of liberty. plausible only by exerting force to compel obedience, thereby cre­ Freedom is a value that is without parallel. Freedom never ating the mirage of stability. In any ostensible order maintained requires balancing. What it requires is enhancement. Freedom by brute force, the ruler has no greater claim to the use of force must be supported and safeguarded. Freedom must be secured. than the ruled. The two are in constant conflict-one seeking to Security, then, is not a counterweight to freedom, but rather a maintain the mirage of stability created by the use of force, the means to ensure that freedom remains intact and contributes other striving to achieve his freedom by the use of force. Order positively to the character of humanity. Simply put, appropriate and liberty are, therefore, not competing concepts that need to be 188 189 I LIBERTY, SECURITY, AND THE USA PATRIOT ACT I I CONFRONTING TERROR I offset to maintain some sort of democratic equilibrium. Rather, Because terrorists owe no allegiance to any particular place they are complementary values symbiotically contributing to the or polity, and willingly sacrifice human life, including their own, stability and legitimacy of a constitutional democracy. in an effort to impose their rigid theocratic agenda, the threat to national and global security is posed to freedom-the free­ dom respecting all nation-states collectively. In this new era, the THE AGE OF TERROR threat to security no longer emanates only from hostile nation­ On September II, 200I, Osama bin Laden attacked those val­ states, but is one rooted in ideology and independent of geogra­ ues, and thousands died tragically. al-Qaeda aimed not only at phy. This global terrorist movement, and its ability to inflict mass our physical structures, but at the very foundation of our ordered destruction, poses a pervasive and asymmetric threat to order on liberty. an international level. The threat is pervasive because the move­ On that one day, a handful of individuals, having spent only ment is a loose network united by shared objectives and ideals; it several hundred thousand dollars, inflicted greater damage on is asymmetric because the new breed of warriors exploit the vul­ America and its citizens than most modern armies would be nerabilities of open, freedom-focused liberal democracies, inflict­ capable of doing by striking directly at our nation's order and ing terror on easily accessible targets-the masses of humanity. freedom. On that day it became clear that warfare is no longer the Modern terrorists engender fear by undermining the stability exclusive domain of nation-states. of consequence. Acting without the bonds of a geographic base or That some wish to inflict such damage on the United States the restraint of a national polity, the enemy is faceless and, in this and its people is neither new nor surprising. What is surprising way, impregnable. That nation-states no longer have a monopoly is that they identified the means of doing so-that they were able on the motives and means of war, the lesson at the core of 9/r I, has to do that which no enemy nation had ever been able to do in the ominous implications for law, policy, and international relations. history of the United States. Terrorism, whoever its perpetrator and whatever the goal, There were signposts leading to the 9/r I attacks. For many poses a fundamental threat to the ordered liberty that our con­ years, individual terrorists and terrorist organizations sought stitutional democracy is designed to protect. The terrorist seeks to execute state-like force. It was not a watershed moment on not only to kill, but also to terrorize. Increasing the body count 9/r I when a breach of the monopoly on force of nation-states is designed to instill fear in those who survive. The terrorist is occurred. Rather, it merely marked a shift-though in a most unlimited in the choice of victims and indifferent as to the tra­ dramatic way. On that day, twentieth-century warfare was ampli­ ditional "combat" value of the targets. Part of an international fied by a modality of destruction that shocked mankind. Old-style conspiracy of evil, terrorists operate across boundaries. They battles, characterized by conflict among nation-states, yielded to capitalize on borders as barriers to enforcement and prevention. the chaotic modernity of the twenty-first century. The 9/r I bar­ They use violence to disrupt order, kill to foment fear, and terror­ barism dramatically marked the beginning of an era that threat­ ize to paralyze normal human activity. By definition the methods ens to replace governed order with pervasive disorder.
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