Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security & Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism.

• Date: 01 May 2003
• Author: Chesney, Robert M.
• Published date: 01 May 2003
• Author: Chesney, Robert M.

TERRORISM AND THE CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN THE NAME OF NATIONAL SECURITY. By David Cole and James X. Dempsey. New York: The New Press. 2d ed. 2002. Pp. xvii, 231. Paper, $16.95.

ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM. By David Cole. New York: The New Press. 2003. Pp. xiii, 315. Cloth, $24.95.

[T]he Department must shift its primary focus from investigating and prosecuting past crimes to identifying threats of future terrorist acts, preventing them from happening, and punishing would-be perpetrators for their plans of terror. --Attorney General John Ashcroft, Nov. 8, 2001 (1) [W]e all know that the way we treat you is the measure of our own liberties. --United States District Judge William Young to "shoe bomber" Richard Reid, Jan. 31, 2003 (2) I. INTRODUCTION

Faysal Galab is a twenty-seven-year-old American citizen of Yemeni descent who was born and raised in Buffalo, New York. (3) He is married, has three children, and used to run a gas station in the Buffalo suburb of Lackawanna. Perhaps you have heard of him; he will be spending some or all of the next ten years in federal prison because in the spring of 2001 he and six other Lackawanna residents traveled to Afghanistan and trained with Al Qaeda. (4)

Their journey began on April 28, 2001, when Galab and two companions flew from New York to Lahore, Pakistan, purportedly in order to pursue religious studies. But Galab and his companions did not remain in Pakistan, let alone immerse themselves in peaceful religious studies. Instead, they traveled to Quetta, a town near the Afghan border, and from there crossed into Afghanistan. Eventually the men arrived at a camp funded by Osama bin Ladin known as al Farooq, (5) where they commenced training in a variety of weapons and military skills. Among other things, Galab trained with explosives and learned to assemble and operate Kalashnikov assault rifles, 9mm handguns, M16 assault rifles, and rocket-propelled grenade launchers. His curriculum also included a lecture component: at some point in May, bin Ladin himself addressed the trainees regarding the virtues of armed struggle against the United States and Israel. At another point, we are told, bin Ladin asked one of the Lackawanna men whether any Americans might be willing to die in Al Qaeda's service.

In the summer of 2001, the men returned to the United States and resumed their quiet lives in Lackawanna. The FBI, alerted to their activities in Afghanistan, watched and wondered. Were they an Al Qaeda sleeper cell, awaiting orders to carry out unspeakable acts? Or were they merely foolish adventurers whose religious convictions had led them unwittingly and temporarily into Al Qaeda's company? Months passed by, and in the absence of evidence indicating an intent to engage in any specific criminal act, the FBI was left with no option but to watch, wait, and worry. (6) Or so it seemed.

The approach of the first anniversary of September 11th prompted administration officials to become increasingly concerned about the risk of additional terrorist attacks in the United States, and the administration's attention naturally focused on those individuals--like the men from Lackawanna--who the government knew had trained in bin Ladin's camps. (7) And although the FBI had the men under surveillance, officials were keenly aware that there might be no affirmative sign of their intentions until it was too late to intervene. The September 11th hijackers, after all, had not manifested their illegal intentions until they stood up in the aisle of the doomed planes. Accordingly, top administration officials--possibly including the President himself--directed the FBI to take preventive action, (8) Galab and his companions were promptly arrested, (9) but not on charges of conspiracy to commit a terrorist act; instead they were charged with providing "material support" to a designated foreign terrorist organization ("DFTO") in violation of 18 U.S.C. [section] 2339B. (10)

Section 2339B, once little known and rarely employed, has rapidly emerged as a central element of the government's post-9/11 terrorism prevention paradigm. (11) Its popularity flows primarily from the fact that it chokes off the flow of cash, weapons, and other resources to DFTOs, thus hampering their ability to engage in violence. In this respect, [section] 2339B functions much like an embargo on foreign terrorist groups. But the material support law turns out to have an additional capacity for prevention, one that raises thorny constitutional issues. A careful review of the manner in which the government interprets the phrase "material support" suggests that the statute could in some circumstances be used to punish membership in a DFTO, regardless of whether the member intends to facilitate, or even knows of, any illegal purpose of the group. Can this be squared with First Amendment protections for freedom of expression and association? Keeping in mind the Lackawanna example and the lessons of September 11th, can we afford a less aggressive approach?

Similar questions have arisen with respect to many aspects of the terrorism prevention paradigm, igniting a passionate debate among scholars and commentators arguing from both the civil liberties and national security perspectives. Into this debate come not one, but two timely and important books by Professor David Cole of Georgetown University Law Center. (12) The earlier of the two is Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security ("Terrorism"), (13) which Cole coauthored with James X. Dempsey of the Center for Democracy and Technology. (14) Terrorism and the Constitution takes aim at the war on terrorism in its early stages, reflecting developments through the end of 2001. Writing alone in the second book, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism ("Enemy Aliens"), Cole brings these criticisms up to date through the summer of 2003.

In a narrow sense, these books focus on distinct issues. In Terrorism and the Constitution, Cole and Dempsey argue that the government was overreacting to the threat of terrorism at the expense of civil liberties even prior to 9/11, and that the subsequent war on terrorism has exacerbated this problem. To illustrate the point, the authors focus primarily on the authority of the FBI to engage in national security investigations and the resulting capacity for political suppression. Enemy Aliens has a broader scope, focusing on the impact of the war on terrorism--and prior periods of national security concern--on noncitizens. Cole argues that in times of crisis our society tends to sacrifice the rights of noncitizens in the politically convenient but ultimately futile hope of increasing security for all, and that such deprivations in turn become precedents for extending like treatment to citizens at a later date. (15)

Notwithstanding these differences, the books are united by a common understanding of our society's treatment of civil liberties in past times of national security crisis. Each describes a historical cycle of civil liberties abuse during such periods, but with an important twist on the traditional narrative: repressive measures do not merely resurface from time to time, but rather they evolve to circumvent norms, precedents, and institutional-civil-liberties protections erected after past abuses were recognized and regretted. I term this evolutionary perspective the adaptive-learning model. It provides the lens through which the authors in both books survey and critique many of the antiterrorism laws and policies adopted in recent years.

In Part II below, I locate the adaptive-learning model among various perspectives offered by scholars who have examined the performance of government with respect to civil liberties under crisis or emergency conditions. Against that backdrop, Parts III and IV set forth in broad strokes the specific critiques of antiterrorism law provided in Terrorism and the Constitution and Enemy Aliens, respectively. Part V then concludes with a close analysis of an argument which plays a significant role in both books and which is representative of the adaptive-learning theme: the claim that the law prohibiting material support to designated foreign terrorist organizations resurrects the unconstitutional principle of guilt by association (Terrorism, pp. 121-23; Enemy Aliens, pp. 58-64). I conclude that this claim is significantly overstated in most--but not all--circumstances, and that it therefore provides only limited support for the adaptive-learning model.

Ultimately, however, one does not have to accept the adaptive-learning model to appreciate the tremendous contribution Cole and Dempsey make in these books. They draw needed attention to the unique vulnerabilities of noncitizens; they raise difficult questions about a range of antiterrorism measures; and the stories they relate put a human face on the abstract concept of civil liberties. Our national debate can only be improved as a result.

2. THEORETICAL PERSPECTIVES ON CALIBRATION ERRORS

   Conventional wisdom holds that during times of crisis the balance between liberty and security shifts in favor of the latter. (16) Although not without its difficulties, (17) this claim is broadly consistent with historical experience, (18) and has some support in recent empirical work. (19) But the naked fact of a change in the balance between liberty and security, without more, tells us nothing about whether society is better or worse off as a result. One cannot assume, after all, that "the legal baseline prior to the emergency ... already embodies the optimal balance between liberty and security." (20) It may be the case that the status quo ante delivered too little security, or that in light of changed circumstances the prior balance is no longer appropriate. (21) Accordingly, whether a calibration error...