On Liberty and the Power of the State

I had an anonymous comment today criticizing my previous post. First, I owe the poster an apology for inadvertently deleting him. I’m not trying to silence you, I’m just a technical incompetent and a neophyte to blogging. Let me try to reconstruct your attack (I invite you to correct me if I misstate it). You took issue with my characterization that Korea was losing interest in democracy, and my suggestion that perhaps Koreans now see democracy as an “American obsession.” You suggested that America should not be expending its energy to defend democracy in Iraq when democracy was in danger back in America.

Where should I start? First, it’s hard to see how sending the Army to Iraq has allowed John Ashcroft to run amok unchallenged at home. The suggestion that we move the 82nd Airborne from Najaf to the front steps of the Court of Appeals isn’t exactly a picture to comfort a civil libertarian. I won’t repeat my own defense of our actions in Iraq; I’ve already discussed them extensively (in brief–by the “credible evidence” standard, we had good reason to believe that Saddam was hiding WMD and supporting terror; alQ is definitely there now, and we can’t afford to let them win; pulling out now would make Cambodia look like mere soccer hooliganism). The comment might be trying to suggest that democracy is not really an American obsession anymore, either. A google search of “Patriot Act” will quickly dispatch that argument, as well as any suggestion that the debate’s been stifled in the least. Perhaps the comment is suggesting that it’s the U.S. government that doesn’t care about democracy, yet a primary criticism of the Iraq war is that U.S. “neocons” had an unrealistic obsession with imposing democracy there. Which is it? The writer suggests that civil liberties are in real danger in the United States, and because that’s a serious argument, I address my own thoughts from a legal perspective below. What I did not see in the post was any defense or refutation of the fact that South Korea is either stifling the debate about human rights in North Korea or deliberately permitting others to stifle it. Either way, it’s an error of omission that further undermines the case for the U.S. presence in Korea. That presence was once based on a common defense of common values and common interests. It’s our army, after all; our government can decide the most deserving priorities for its efforts.

There is a popular myth that all government encroachments on civil liberties are as irreversible as the Enabling Acts in Hitler’s Germany. History has repeatedly proven that this is false; they’re only irreversible if the public doesn’t care about its liberties, and in this case, the public cares very much. Historical context is helpful here. The U.S. has survived many other encroachments on its civil liberties: Lincoln’s suspension of habeas corpus, the Alien and Sedition Acts, the Dred Scott decision, the Palmer Raids, Joe McCarthy, and the detention of Japanese-Americans (U.S. v. Korematsu, Sup. Ct. 1944). All of these abusive practices were reversed by a combination of public outcry and subsequent court rulings (except Dred Scott, which required a war, the loss of 300,000 lives, and passage of the 13th Amendment).

On the other hand, history has repeatedly proven that a breakdown of the rule of law tempts the violent to use other means to effect political change and undermines the faith of the public that democracy can make them safe and prosperous. That’s equally true of Brownshirts in Berlin, Mullahs in Najaf, terror cells in South Florida, or street thugs in Seoul. In all of those cases, a failure of central authority to establish its monopoly on violence tempted others into the violence business, and either did or could result in a powerful backlash that’s an even greater threat to civil liberties. Am I suggesting that North Korea is therefore the model state for the protection of democracy? Not at all. I am saying that the protection of freedom isn’t simply a matter of limiting the government’s power. Maintaining freedom is a delicate balance between government abstinence from excessive control and government protection of our rights from the violent ones who walk among us. An excess in either direction is likely to lead to a countervailing excess later.

Before there was a 9/11 Commission second-guessing our failure to catch the terrorists from the safety of hindsight, Deputy Attorney General Jamie Gorelick took the single action that did the most to guarantee the success of the 9/11 plot; she erected a “wall” between foreign intel and domestic law enforcement, something that she admitted went beyond the requirements of existing law at the time. Hence the “breakdown” between the CIA and FBI. Gorelick’s mistake was to view civil liberties in terms of a one-dimensional progression between government powers and, well, civil liberties. Had Ms. Gorelick not gone beyond the existing protections of law to this extreme position, we might not be talking about the Patriot Act or 9/11 today. Oh, and here’s the interesting part . . . Ms. Gorelick was later appointed a 9/11 Commissioner.

That being said, I’m also bothered by two things about legal practices post-9/11 (although pulling out of Iraq won’t fix either one). First, I hate the creepy, Orwellian name “Patriot Act.” Second, I see real potential for abuse in cases like Padilla and Hamdi, in which U.S. citizens were detained on U.S. soil for a very long time without access to lawyers. Cases like these obviously represent the most compelling law enforcement interest imaginable. They justify procedures that go beyond the constitutional protections that we’d begrudge the lowliest child molestor or murderer. They require extreme secrecy to avoid compromising investigations that cannot afford to fail. The danger, of course, isn’t when we apply those procedures to guys like Padilla and Hamdi–it’s when we apply them to guys who are not like Padilla and Hamdi. Congress has the duty and power to write our laws, and rather than drawing a clear line around guys like these two, it’s kicked the ball to the courts. So exactly what procedures can our government use against people who may know where the suitcase nuke is buried? Where is the line that says that we can use sleep-deprivation against Padilla but not break his kneecaps, or that we can use it against a member of al-Qaeda, but not a member of the Environmental Liberation Front? Another lesson of history is that when courts want to reach predetermined results, they usually do, usually but not always for the better. And obviously, the absence of more specific guidance tempts the expansion of executive or prosecutorial authority. These are the dangers of errors of commission. But the greater danger to freedom is from errors of omission–that the next Padilla or Moussaoui will succeed because the government didn’t feel itself empowered to follow a critical lead one step further. That, in turn, could lead to Patriot II, or a series of bad results-oriented decisions that will infect our whole legal system. It could also mean that terrorists try to decide elections, as they apparently did in Spain, or that street thugs in Seoul become a shadow government enforcing North Korean-inspired limitations on the exercise of free speech.

In due course, probably after the election, I hope Congress will meet the danger proactively, rather than simply react, as it did with 9/11 or the building backlash to the Patriot Act. What’s needed is a legal framework that deals with terror investigations head-on and expands but strictly defines the government’s powers in such cases. Even in such cases, we need the protection of independent judicial review to protect the innocent from the potential for abuse, and that requires the intervention of a zealous advocate for the accused–a lawyer with a top secret clearance. We need specific rules on habeas corpus hearings, the qualification of counsel with appropriate security clearances, procedures for closing proceedings to the public, and a system for regular magistrate review of detentions. Above all, we need air-tight standards limiting these procedures to the narrow circumstances–violence on a mass scale with political or religious motives–that absolutely require them. What I’m proposing here isn’t unprecedented. In Ex Parte Quirin, the U.S. Supreme Court affirmed the military’s use of military tribunals to try (and in some cases, hang) Nazi saboteurs, including U.S. citizens, captured on the East Coast. Since the 1970s, the United States has maintained a special court with secret procedures under Foreign Intelligence Surveillance Act, a law designed to allow the U.S. government to investigate foreign spies within its own territory. The FISA’s members are serving federal judges with high security clearances. The rest of us still have our civil liberties intact because our laws strictly limit the use of those special procedures.

Other criticisms of the Patriot Act, mainly attacks on its expansion of the feds’ search-and-seizure powers in relation to suspected terrorists, are less persuasive. For the most part, they fail to take into account that Patriot mainly just extends the feds’ existing power to monitor and detain drug suspects to terror suspects. Others, like attacks on government “data mining” or “total information awareness” merely give the government the power to see the same things your credit bureau and about a gazillion telemarketers see every day, information in which there’s no reasonable expectation of privacy. I would add that as I understand those concepts, they never survived the proposal stage and would have applied only to terror suspects. Look for them to be revived after the next terrorist attack.

The legal challenge we face now is our first domestic guerrilla war since the 1860s. I can guess without the slightest fear of being wrong that there are sleeper agents in this country today planning to kill thousands of Americans. Yes, there is always the danger that government will abuse its power. Vigilance is the eternal price of freedom. But the mere erosion of government power or selective reluctance to use it will not protect civil liberties in today’s world. If the stayed hand contributes to another terror attack, it may even undermine our freedom. We learned on 9/11–and indeed, from Weimar Germany–that there are also abuses of omission. When the rule of law fails, so does the public support on which democracy depends. A view of liberties as a subjective direction, rather than an objective set of minimum protections, is a drastic error that threatens to deny (and has denied) governments the tools it needs to make us safe. Nothing will do more harm to civil liberties than a government that can’t or won’t protect its people as they pursue their own liberties. To do so tempts the violent to eschew democratic means and saps the majority’s faith in the democratic system.