It is harder to preserve than to obtain liberty.
—Vice President John C. Calhoun
Security and liberty have come to the forefront of public attention since September 11, emphasizing the precarious balance and highlighting the intrinsic tensions ever-present between the two. With the sense of security in the United States collapsing along with the twin towers of the World Trade Center, freedom, as President Bush has noted, still stands at the core of the nation and its resolve to withstand adversity and pursue justice.
However, as panic has spread, liberty is being pressured in a countrywide scramble for security. The sweeping security measures being undertaken guarantee little immediate practical payoff, but they threaten civil liberties by greatly expanding law enforcement powers at the expense of individual rights at home and, even more dangerously, conditioning public opinion to accept this new norm globally. In this environment, ensuring that the balance between liberty and security is maintained becomes paramount. It is now more imperative than ever to find general strategies, as well as concrete measures that would allow for both the preservation of liberty and the simultaneous enhancement of security.
Security versus Liberty
Security and liberty seem to have been long pitted against each other, as if one can only be attained at the expense of the other. Take, for example, proposals to introduce digital identification cards that would include personal information, such as name, address, fingerprints, and so forth, electronically stored and connected to a nationwide database. The proponents claim that such a national identification system would only be a small inconvenience for law-abiding citizens and that it would pay for itself by facilitating criminal captures and expediting airport check-ins. The critics, however, maintain that gains in security would be dubious compared to the losses in freedom of movement, communication, and assembly.
Congressional debates over the USA Patriot Act of 2001, often referred to in the press as the Anti-Terror Bill, provide another example of security confronting liberty. Although most members saw the bill as a balanced and necessary way to protect the nation against terrorism, some were concerned with the sweeping nature of the measures that might threaten constitutional protections such as those granted under the Fourth Amendment. Despite these tensions, the bill was signed into law on October 26, 2001, after a mere six weeks of deliberation in Congress. (Normally it takes the better part of a year or more to scrutinize such major legislation.) The bill significantly expands the investigative powers of law enforcement and intelligence agencies to monitor private communications and access personal information. It enables "roving wiretaps," which permit interception of any communications made to or by a target of investigation without specifying the particular telephone line, computer, or other facility to be monitored, and it sanctions the use of subpoenas to expand the scope of interception and disclosure of electronic communications. In addition, it allows for the nationwide application of surveillance orders (which previously applied only within the jurisdiction of the issuing court), including the use of Carnivore—a controversial system that provides the FBI with access to the communications of all subscribers of a monitored Internet service provider, not just those of the court-designated target. The use of Carnivore by the FBI was revealed in July 2000 and raised serious civil liberty concerns in Congress and the media. The far-reaching extension of law enforcement powers granted by the bill only exacerbates these concerns.
"Ensuring the proper balance between liberty and security has become critical."
The swift passage of the Anti-Terror Bill, the consideration of obligatory national ID cards, the introduction of military tribunals for some suspected terrorist cases (characterized by closed proceedings as well as relaxed conviction standards—such as the two-thirds approval requirement for capital cases) combined with overwhelming public support, and the willingness of more than 75 percent of the population to reinstate a military draft, demonstrate today’s tendency to view enhanced security as a greater priority than the threats to liberty associated with it. The reasons for this newfound paradigm appear to run deeper than the shock in the wake of the terrorist attacks. The average U.S. citizen, who has been raised and has lived his or her whole life in an affluent democratic society unmarred by a history of tyranny, seems underappreciative of civil liberties precisely because they are broadly protected and essentially taken for granted in this country. In the absence of such an experience as surviving at the whim of unaccountable and oppressive authorities, one would find it hard to imagine the kinds of pervasive violations that are possible and have been perpetrated in other countries in the name of ideology, religion, and security. It is therefore even more difficult to imagine that such ills would ever be capable of radically grasping a strongly democratic state. The truth is that the threat is not in a sudden coup d’état or a totalitarian takeover. These afflictions will not seize America all at once—the civil rights traditions in this country are too strong—but the increasing limitations on civil liberties may tarnish, degrade, and ultimately undermine this nation’s democratic foundation.
In times of peace and prosperity a relative lack of concern for civil liberties on the part of the general population can be considered a great achievement of a democratic society. It could mean that civil liberties are so inviolable that they are integrated into the very fabric of society. In times of crisis, however, a lack of concern for civil liberties can lead to the adoption of sweeping security measures, which, without due scrutiny, might have long-lasting implications for the future of democracy. Recent developments, highlighted by the expanded domestic surveillance measures authorized by the Anti-Terror Bill, are a symptom of this unfortunate trend.
Constitutional Protections Threatened by Expanded Surveillance Powers
In the context of today’s information and communication technologies, sweeping surveillance presents a singularly great threat to civil liberties. Today, sophisticated electronic capabilities enable easy collection, analysis, manipulation, and dissemination of large volumes of data, obtained through wiretaps as well as a variety of tagging and tracing techniques, room bugs, and cameras tied into image-recognition systems. Suspect computer hardware and records may not only be searched and seized as evidence but also remotely monitored by capturing keystrokes, passwords, e-mail messages, attachments, desktop files, and so on.
Limitations on civil liberties may tarnish, degrade, and ultimately undermine our democratic foundations."
Although invasive surveillance may be needed before, during, and after any suspected incident to determine whether it constitutes terrorist communications, such intrusive actions may, whether accidentally or even intentionally, interfere with work and communications of innocent users and inflict undue harm on them. In addition, such measures jeopardize privacy and constitutional protections against unwarranted searches and seizures and against self-incrimination.
In general, such search and seizure operations require probable cause and a legal warrant specifying the place to be searched and the persons or things to be seized. In an age when networked computers are used to store documents and carry out communications, however, limiting the scope of legitimate searches can be problematic. Furthermore, Internet users leave electronic trails of personally attributable, identifiable, and compromising information—including their online behavior, preferences, address, and financial data. This is likely to be collected and stored by the organization whose web sites are visited or by third parties, including the police. Extensive profiling of unaware users leads to further breaches of their privacy, particularly since such profiles are vulnerable to business exploitation, criminal perusal, and government abuse.
The average U.S. citizen fails to appreciate civil liberties precisely because in this country they can be taken for granted.
All these threats existed before the attacks of September 11, but since that tragic date the paranoia has been spreading along with the uses of advanced means of interception and analysis of such information, creating a troubling pattern. Measures allowing the use of Carnivore and the like create and implement an infrastructure for surveillance. Legislation such as the Anti-Terror Bill legitimizes the use of this infrastructure in a broad societal context, creating a precedent for large-scale societal surveillance, albeit with some four-year "sunset" limits. But since it is far from clear that the war on terrorism will be "won" in four years, it seems quite likely that this time frame will eventually be extended. And even if the extended law enforcement powers are repealed after the threat of terrorism subsides, the infrastructure will have already been in existence long enough to be used and abused by law enforcement as well as technologically advanced criminals and terrorists alike, further undermining the cornerstone constitutional protections of U.S. democracy.
Are Security Improvements Worth Compromises to Our Liberty?
The effectiveness of widespread surveillance has long been suspect, given the realities of today’s information technology. There is too much information to sift through and too few people capable of understanding and interpreting it. Terrorists, including bin Laden’s group, reportedly use such techniques as encryption, anonymity-protecting software (which strips identification of senders and receivers from messages), and steganography (a digital data technique that can conceal coded messages in innocuous pictures) among other means for securing and obscuring their communications. These means are relatively robust and can often be easily obtained, sometimes even for free, on the Internet. Furthermore, to be effective, surveillance activities demand an extraordinary commitment of resources, while introducing new vulnerabilities, as they themselves could be compromised and misused by technologically savvy criminals or other unauthorized personnel.
The terrorist assault is aimed at the very democratic foundations that make this nation strong, proud, and prosperous.
The efficiency of wide-scale security activities is also questionable, as efforts and resources are often likely to be misdirected when targets are too plentiful or too obscure. Such misdirection occurs when disproportionate shares of resources are allocated toward investigating relatively inconsequential activities, while allowing life-threatening conspiracies to remain undetected. For example, massive resources have been expended by the FBI and other law enforcement organizations (with little in the way of eventual retribution) to track down a number of hackers engaged in activities such as defacing web sites. They also pursued a Princeton University professor who found vulnerabilities in the digital music access-control technologies, forcing him not to publish the research findings, and temporarily jailed a Russian researcher who presented decryption algorithms at a public conference in the United States for allegedly violating copyright law. Although such activities may threaten commercial profits, they certainly do not endanger human lives. In the meantime, the September 11 attacks were being planned undetected.
Better prioritization among and a focus on the seriousness of the various external and internal threats by law enforcement authorities may well lie at the heart of the solution to the present security-versus-liberty dilemma. With signs of conspiracy in the works to kill Americans and to destroy their property, investigative energies were instead spent on silencing researchers and tracking teenage hackers. All the while, a number of Al Qaeda members with likely knowledge of the terrorist plans were already in jail in the United States, including Mamdouh Mahmud Salim, believed to be one of the founders and ideological leaders of bin Laden’s militant group. (Salim was convicted for his role in the millennium terrorist plot and links to the 1998 U.S. embassy bombings in Tanzania and Kenya.) Had law enforcement efforts been directed at interrogating these convicted terrorists and investigating their links to Al Qaeda, it is possible that the September 11 tragedies could have been prevented.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety"
This wisdom of Benjamin Franklin is as pertinent today as it has ever been. Whereas the effectiveness of sweeping security measures is short-lived and at best ambiguous, the losses in liberty are real, undeniable, and unacceptable.
What can be done to protect and improve both, especially in today’s extraordinary situation, which demands compromise? In principle, limitations on liberty could be deemed necessary in specific, targeted cases with a high probability of gain in security and a low expectation of harm to freedom within the society at large. In practice, this means extracting information from the already convicted terrorists in custody, indicted persons, and those captured as suspects, rather than implementing sweeping measures that threaten the civil liberties of the entire nation with dubious safety gains in return.
Key suspects in orchestrating the spectacular acts of terror on September 11 have already been indicted. These include Zacarias Moussaoui, who was captured in August 2001 after he sought lessons on how to fly commercial jetliners but not how to take off or land them; Mohammed Jaweed Azmath and Ayub Ali Khan, who were detained the day after the assaults on the Pentagon and the World Trade Center traveling with false passports, box cutters such as those used by the suicide hijackers, and thousands of dollars in cash; and Nabil Almarabh, a former cabdriver with alleged links to Al Qaeda. These people have not yet been indicted for terrorism, but they have been indicted for other crimes. Some convicted terrorists are also in custody, including Salim, mentioned above, and Ahmed Ressam, caught bringing explosives across the border for the planned but foiled millennium attacks.
The jailed associates of bin Laden are reportedly silent, despite endless interrogations and offers of lighter sentences, money, jobs, life in the United States, and so on. The four suspects directly related to the September 11 attacks obviously possess information about these and possible future assault plans, potentially including the anthrax mail campaign, leaving the FBI frustrated at not being able to use stronger methods of inquiry on them. According to U.S. law, information obtained by physical pressure, inhumane treatment, or torture cannot be used in trial proceedings, and interrogators could be sued for such conduct. This points to a peculiar incongruity in the law, whereby the liberty of the already indicted terrorists, who have committed astonishing acts of violence, is being protected, while the rights and liberties of millions of law-abiding citizens, whose lives are threatened by terrorism, are being compromised.
Strategies for getting the jailed terrorists to talk run from such far-fetched ideas as extraditing these criminals to a friendly country that offers fewer protections to convicts and applies stronger interrogation measures, to employing such measures as the injection of sodium pentothal (or another such drug or psychological method that aims to suppress the will of a suspect to keep silent), to the application of physical force at home. But the extradition scenario will take time, and time can take lives if new attacks are not foiled. The thought of using stronger interrogation means domestically makes one shiver. For a person who has grown up and lived in an affluent democratic society with its ingrained respect for human life, such tactics appear barbaric and unacceptable. Outside the thin civilized, liberty-loving, and life-protecting layer of "modern" democratic societies, however, the world is different, and some representatives of that world do not respond to American incentives. They value life differently and they are willing to give up their own to murder thousands of others.
Not just America, but the core of the American way of life itself is under attack in this "terrorist war." The assault—both physically and psychologically—is aimed at the very foundation that makes this nation strong, proud, and prosperous. Under these dire circumstances, if someone’s liberty must be compromised to protect the lives of the whole nation, it should be the liberty of those with the least justified claims to freedom and the most information leading to concrete security gains for all. Convicted and indicted terrorists fit this category first and foremost.
Enhanced security can be attained while preserving our liberties.
It seems self-evident now, in the aftermath of September 11, that America requires better security protection, but so too does the American way of life, with its fundamental respect for individual rights and freedoms. What this nation needs now is legislation extending the powers of law enforcement in only those specific cases characterized above, with time limits and protections in place, instead of sweeping knee-jerk measures such as the Anti-Terror Bill of 2001. Americans should not let the terrorists dictate their terms and destroy the American way of life by prompting social compromises to its core security. Benjamin Franklin was right about it in the eighteenth century, and his words still hold true in the twenty-first.
Extraordinary Measures in Extraordinary Times
Today’s extraordinary situation calls for extraordinary measures—that, though applied with great resolve, must be used sparingly and discriminatingly. Sweeping security measures carry a high risk/reward ratio and guarantee little practical payoff, while threatening civil liberties and exacerbating public fears. They require extra time and money but do not necessarily constitute a productive activity. Such societywide measures are directed at no one in particular but at everyone; as September 11 has demonstrated, the "terrorists" are among us—sitting on the airplane next to you or shopping in your neighborhood grocery store. This undermines the authorities’ standing within the society, leading to feelings of growing distrust toward them. Furthermore, such measures demoralize the general populace by continually reminding us about the unmet threats and the looming terror. This, in turn, creates a sense of constant monitoring and perpetual insecurity, undermining the trust of our fellow citizens, thus tearing apart the quintessential fabric of the society. If all are being watched—anyone could be the enemy.
We must focus on those directly involved with terrorist activities and strengthen the means of inquiry and investigation of them and theirconnections. Indicted and convicted criminals are responsible for taking the lives of others and harbor knowledge that could help foil future disasters, while potentially saving a great number of innocent victims and preserving the values of a democratic society. The assaults on September 11 were not on buildings as much as on a way of life, one which respects human beings and their freedom while providing security and promoting prosperity. Liberty and security are the twin pillars of such a society. Both are now under attack. Let us not be the shortsighted accomplices of, but the farsighted protectors against, those who look to destroy them. We should refrain from enacting sweeping societal measures that undermine the civil liberties of law-abiding citizens, such as the Anti-Terror Bill of 2001, and pursue strengthened methods of inquiry against the perpetrators of terrorism. Enhanced security can be attained while preserving liberty, despite the pressures of these profoundly challenging times, but it requires that intelligent, selective, and resolute measures be put in place promptly, lest the terrorists claim "victory" regardless of the outcome of the "war."