October 3, 2001

October 3, 2001 | Backgrounder on Department of Homeland Security

The Administration's Anti-Terrorism Package

The Bush Administration's anti-terrorist proposal has been the only issue since the terrorist attacks on September 11 to spark serious disagreement in Congress. Some fear that adopting the Administration's proposed new law enforcement measures to increase security would endanger civil liberties.

This is a necessary debate; however, it is also one that could easily be misunderstood. Before the debate endangers the unity needed to fight the war on terrorism, it is appropriate for policymakers to stop and think more carefully about the relationship between liberty and security. Above all, care must be taken to avoid artificially polarizing the discussion into two hostile camps-one favoring security and the other favoring civil liberties.

This can be accomplished in two ways. First, policymakers must distinguish between constitutional liberties on the one hand, and mere privileges and conveniences on the other. Second, they must understand that liberty depends on security and that freedom in the long run depends on eliminating the threat of terrorism as soon as possible.

Indeed, policymakers must do everything in their power to preserve the basic liberties protected by the U.S. Constitution, such as the due process of law (including the need to show probable cause and judicial review for issuing warrants and the right to a hearing); the right to be free of unreasonable search and seizures; the right of free speech and religion; and the right to assembly. While it may be permissible to suspend some rights temporarily in a state of emergency-as in a formal declaration of war by Congress-so far this has not been done.

However committed Americans must be to civil liberties, they do not have a constitutional right to complete privacy if it endangers the lives of others. Investigators should not be denied access to potentially critical information gained overseas by foreign intelligence sources that could save lives, merely because the methods by which it was obtained do not conform to the U.S. Constitution. Nor should sensitive intelligence information on terrorists be compromised by disclosure in open court proceedings. There must be a reasonable balance between privacy and security.

The Administration's proposed anti-terrorism package for the most part draws these distinctions properly. Specifically, it would:

  • Update wiretapping laws to keep up with changing technologies concerning cell phones, voice mail, and e-mail surveillance;

  • Permit the sharing of information between law enforcement agencies and intelligence services;

  • Give courts the authority to review terrorism cases without compromising classified information; and

  • Enable the government to detain alien individuals who are found to pose a threat to national security until they are actually removed or until the Attorney General determines the person no longer poses a threat. These people would be detained while charges (such as violation of immigration laws) are pending against them. Once those charges were resolved in favor of the individual, he or she would go free.

Reasonable people may disagree with some of these measures and seek improvements. For example, it seems that some time limitations could be established on the detention of foreigners suspected of terrorist ties. Moreover, some provisions could be modified to ensure that information collected on U.S. citizens is not leaked or shared with someone in or out of government who has no need or right to see it. Finally, every effort should be made to ensure that changes made in criminal law are focused as much as possible on the threat of terrorism and could not be abused or used to broaden the investigative powers of the government for non-terrorist-related cases. The new legal tools, developed as emergency measures to fight terrorism, should not necessarily apply to routine criminal investigations. Information collected on people in terrorist investigations should not be used in criminal cases unrelated to terrorism-in tax evasion cases, for example.

STOP TERRORISM TO PROTECT CIVIL LIBERTIES
The attacks of September 11 inevitably will effect changes in some aspects of criminal law. Foreign groups are attacking Americans within the United States, which cannot help but blur the previously bright lines of distinction between national security and criminal law. Compromises will have to be made. People flying on airplanes will have to be subjected to more intrusive questioning, and while any information an airline gathers should not be used for purposes other than security, people must realize that flying is a voluntary act. Some amount of privacy will have to be sacrificed for the sake of the common safety of the crew and passengers.

If the Administration's anti-terrorism proposal is adopted by Congress and enacted into law, there will be cases in which notice of a warrant on suspected terrorists may have to be delayed in order to avoid tipping off a suspect. And there will be times when aliens suspected of terrorism will be detained by rules and legal procedures that are more restrictive. All of these new provisions are reasonable and necessary. None of them represents an infringement on the constitutional rights of American citizens.

The nation must realize that the nature of the terrorist threat has changed and that some laws must change to deal with this new threat. The distinction between domestic and international terrorism-indeed, even between domestic and foreign threats-is now artificial. The foreign threat is here at home, and the laws that normally protect citizens from criminal activity are not sufficient to deal with the complexities of a threat that is both foreign and domestic. Facing a threat as serious as this, civil liberties are in greater danger from a "business as usual" attitude than they are from the minor changes proposed in the Administration's anti-terrorist package.

THE NEED TO ACT
However moderate the Administration's proposal may be, the future could be very different if terrorism is not stopped. The longer Americans remain insecure and vulnerable to terrorist attacks, the greater the likelihood that their constitutional liberties will be eroded in the long run. Surely, the nation needs a balanced approach to fighting terrorism at home, but the government must be able to take whatever measures are necessary and consistent with constitutional liberties to quickly re-establish an environment of security.

Until the federal government takes measures that re-establish Americans' confidence in air travel, the economy will be hampered. Until the government makes Americans feel safe and secure, Muslim Americans may be wrongly attacked. Until the government demonstrates that terrorist cells have been eradicated inside the United States, many Americans will be demanding the kind of excessive law enforcement measures that civil libertarians decry. And until the government takes decisive action against terrorist networks and states abroad, Americans will not feel confident that the threat has been removed from their shores.

Imagine what would happen if the war against terrorism fails. Repeated attacks would create panic, and a terrible backlash against civil liberties would ensue. As the casualty toll grew, the calls for draconian measures would make the rather modest provisions in the Administration's anti-terrorist package pale by comparison. A long twilight struggle against terrorism that proves ineffective would chip away at the Constitution in ways Americans can scarcely imagine. Over time, fear and loathing-particularly if America were victim to an attack from weapons of mass destruction that killed millions-would create a tremendous demand from the American people to restrict liberties in the name of security.

That is why the United States must act quickly and decisively now to destroy terrorism at home and abroad. While the President is correct in saying that the anti-terrorist campaign may take many years, the war on terrorism should not become a permanent feature of American life. The goal should be to destroy terrorism as quickly as possible. The United States needs to be patient, to be sure, but not too patient, especially as far as foreign operations against terrorism are concerned. It must be forceful and determined in the short run in order to protect Americans' constitutional liberties in the long run.

This means that the foreign campaign must be as broad as necessary to ensure that the threat of terrorism is not merely contained, but defeated. It means going after the regimes that harbor terrorists. If the international effort merely strikes at one man, one group, or even one network of terrorists without changing or fundamentally altering the pro-terrorist policies of the regimes that protect them, another terrorist leader, group, or network will arise in their place. The more forceful and effective the foreign anti-terrorist campaign, the less pressure there will be against civil liberties at home.

Americans should not forget that there is no more basic civil liberty than the right not to be blown to bits. Civil governments are formed not only to protect liberties, but to protect the lives of their citizens-from each other and from foreign attacks. The Preamble to the U.S. Constitution states that among the purposes of the federal government are to "insure domestic Tranquility, provide for the common defense, [and] promote the general Welfare" of the American people. There would be no "Blessings of Liberty"-another constitutional goal-if it were not for the order and security provided by the federal government.

CONCLUSION
The changes in law contained in the Administration's anti-terrorist proposal would be a small price to pay to enhance the nation's capabilities to apprehend terrorists. Whatever limited sacrifice in privacy and privileges there may be in these proposed measures is small in comparison to the long-term risks posed to civil liberties by terrorism.

John Adams said in 1765 that

Liberty must at all hazards be supported. We have a right to it, derived from our Maker. But if we had not, our fathers have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood.

While American troops may be asked to pay for liberty in blood, most Americans will be asked merely to give up a few privileges and conveniences. Surely, this is a sacrifice they can afford to make.

Americans will never be free so long as terrorists are threatening their homeland. It would be ironic indeed if an inordinate fear of losing some rights were sufficient to deny the nation the tools it needs to stop the very thing that would doom the Constitution-the scourge of terrorism. Americans cannot be free unless they are secure any more than they, in the long run, can be secure unless they are free. The United States must stop terrorism in America if it is to preserve freedom.

Kim R. Holmes, Ph.D., is Vice President of Foreign and Defense Policy Studies and Director of the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.

About the Author

Kim R. Holmes, Ph.D. Distinguished Fellow
Douglas and Sarah Allison Center for Foreign and National Security Policy

Edwin Meese III Ronald Reagan Distinguished Fellow Emeritus
Edwin Meese III Center for Legal and Judicial Studies