Civil liberties and human rights in the aftermath of September 11.

• Author: Heymann, Philip B.

1. INTRODUCTION

   The focus of concern about the tension between liberty and security in dealing with terrorism has centered on the antiterrorism bills and the resulting USA PATRIOT Act. (1) But, the issues presented by the statute--involving privacy of space and communications and the reputational risks that arise with a broader sharing of information--are not as important as those within the discretion of the executive branch, before as well as after September 11. A number of these questions are of major importance and are likely to escape careful attention.

   The issues of discretion involve matters of life or death, torture, detention without trial, trial without juries, and basic freedoms to dissent. These discretionary determinations also raise issues of profiling that cut deeply into notions of equal citizenship and equal protection. Most of these questions involve the human rights of citizens of other countries, but some involve Americans as well.

   The critical tradeoffs forced on those living in the United States by the events of September 11 are not those pitting the rights of Americans to be free of intrusive investigative steps against the needs of national security. They are:

   * The privacy rights that are involved in the collection and use of information from a wide variety of sources versus the privacy rights compromised by intrusive techniques.

   * The costs in terms of privacy and efficiency of investigating all possible suspects versus the discriminatory effects of focusing investigation on groups characterized by ethnic characteristics.

   * Internal security measures versus law enforcement measures and the use of intelligence agencies versus the use of law enforcement agencies.

   * The difficulty of trials in the United States versus assassination abroad or military tribunals (which are spared the difficulties of open proof and an independent fact-finder).

   * Greatly increasing the level of intrusiveness of investigative activity in the United States versus encouraging other nations to increase the intrusiveness of their own investigations.

   So the focus of this Essay, therefore, is not on new statutory powers but on the more consequential refocusing of powers long available to U.S. law enforcement and intelligence agencies. It is about the tactical interplay of rules for U.S. citizens with rules for non-citizens. The risks to American civil liberties--and to the human fights of others--result from the efforts we will make to increase our security (and our freedom from fear) in any of three ways--prevention, consequence management, and punishment.

   Prevention. We must try to increase our security against major terrorist attacks by some mix of the following ways to prevent attack in the first place: (1) learning of a terrorist group's plans in advance, monitoring its efforts, and frustrating those efforts; or (2) denying all those who do not pass some test of loyalty access to likely targets or to the resources needed to attack those targets; (3) combining the first two by discovering who to track by monitoring efforts to obtain access to targets and dangerous resources; or, finally, (4) detaining, without criminal convictions, those who are more likely to support an act of terrorism.

   Consequence Management. To the extent we fail to prevent a terrorist attack, we must be prepared to minimize its harmful consequences. If we are talking about massive attacks of terrorism such as those on September 11 or like those that might follow from use of biological or nuclear weapons, that requires planning to make available emergency powers that are not generally granted to law enforcement, military, or intelligence agents--a grant that carries with it grave dangers.

   Punishment. Finally, if we have failed to prevent a massive terrorist attack, we will want to retaliate against the terrorist group, its leaders, and any state that supported it. This, too, raises large and difficult issues of human rights.

   In this Essay, I first identify the most significant risks to political and personal freedoms of Americans and others within the United States from efforts to prevent, to minimize the harmful consequences of what is not prevented, and to punish terrorists. Then I turn to the set of human rights issues that involve the risks to the lives, rights, and liberties of those not living in the United States. This is a project rich enough without attempting in each case to resolve with some finality what are sometimes very difficult choices among reasonably disputable options. To take that step would require assessing the ability of various governmental intrusions to create safety and the availability of alternatives less dangerous to our traditions.

2. DANGERS TO THE CIVIL LIBERTIES OF U.S. CITIZENS AND OTHERS WITHIN THE UNITED STATES

   1. The Risks to Privacy and Liberty Associated with Efforts to Prevent a Massive Terrorist Attack

      The safest and surest way of preventing a terrorist attack is to monitor effectively every individual or group who may possibly be planning such an attack. But the result of that, besides an immense expenditure of investigative resources, is to expose large numbers of individuals and groups who have no violent intentions to monitoring because of some small chance that the government may have overlooked the danger of the group or individual. How costly that is depends, in part, on how coercive or intrusive the monitoring is. But it will all be intrusive. Even the administration's efforts to interview, without arresting, thousands of visiting aliens (2) are, because of the vast discretionary powers of the Immigration and Naturalization Service, inevitably coercive: few non-citizens will feel free to refuse to answer questions. (3)

      Other steps have more serious consequences. The use of informants, which the law does not limit, (4) even without searches (secret or otherwise) or electronic surveillance, is always likely to create a substantial inhibition of democratic political activity. When the Department of Justice mistakenly suspected the Committee in Solidarity with the People of El Salvador (CISPES) of supporting Salvadorian terrorists, the United States Senate described the resulting danger to democratic values in this way:

      The American people have the right to disagree with the policies of their government, to support unpopular political causes, and to associate with others in the peaceful expression of those views, without fear of investigation by the FBI or any other government agency. As Justice Lewis Powell wrote in the Keith case, "The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power." Unjustified investigations of political expression and dissent can have a debilitating effect upon our political system. When people see that this can happen, they become wary of associating with groups that disagree with the government and more wary of what they say and write. The impact is to undermine the effectiveness of popular self-government. If the people are inhibited in expressing their views, a nation's government becomes increasingly divorced from the will of its citizens. (5) To avoid that inhibition of speech, recent Attorneys General have required a reasonable suspicion of planning violence or acting on behalf of a foreign power or group to further international terrorism before authorizing any intelligence gathering to prevent terrorism. (6) The classified standards for opening an investigation of international terrorism are said to follow closely the definition of a foreign party or agent in the Foreign Intelligence Surveillance Act. (7) True, the required predicate is somewhat elastic. In times of great danger it will be stretched in the direction of monitoring whatever groups vocally support a state or group engaged in terrorism. Such speech is about the only open sign that someone is more likely than others to engage in terrorist activities, even though it is a weak sign. But even this protection--requiring reasonable suspicion of actually planning political violence--may not survive the events of September 11.

      The second way to prevent a terrorist attack on a particular target in a particular way is to deny some...