The damage that Osama bin Laden did to the United States went far beyond the attacks of September 11 and will outlive him, at least for a time.
In search of safety from his grand scheme of unending terrorism on American territory, the country jeopardized key constitutional rights at home, and most of those compromises remain in force, both in law and in practice. In nearly every area except torture, which President Obama formally ended with an executive order, enhanced government powers adopted by the Bush administration have been retained.
The measures strengthened the executive branch at the expense of the judiciary, disrupting the Constitution’s calibration of checks and balances. Amended laws empowered mid-level officials to collect personal data on millions of citizens and weakened the Fourth Amendment’s guarantee against suspicionless searches. Aggressive investigations undermined the First Amendment’s protection for unpopular speech by targeting certain Americans for saying certain things, even in private. The Fifth Amendment’s shield against self-incrimination was punctured by several criminal cases based on statements given in coercive conditions overseas.
Because terrorism itself knows no international boundaries, it has been impossible to seal the United States from all rights violations the government has committed abroad. Counterterrorism tools do not necessarily have geographical limitations. The Military Commissions Act, for example, applies inside the country as well as outside, and while it is currently being used only in Guantanamo, the law also enables the military to arrest and try non-citizens living legally inside the United States, with no role for the judicial branch except on appeal.
We cannot put a final end to bin Laden’s destructive legacy unless we repair the liberties eroded in his name.
Similarly, clandestine foreign operations have sullied the civilian courts. The Obama administration has successfully continued President Bush’s invocation of state secrecy to thwart lawsuits by individuals who claim to have been seized abroad and flown by the CIA for torture in Egypt, Morocco, Afghanistan, and elsewhere. The Obama Justice Department’s secrecy argument has also persuaded federal judges to block Americans from suing over warrantless surveillance done during the Bush years.
None of this seems likely to change. Although the President entered office on a pledge to revisit the 2001 Patriot Act, which shot holes through various privacy statutes, he has called for no significant revisions in the expansions it made to the Foreign Intelligence Surveillance Act (FISA), which authorizes secret courts to permit secret surveillance.
He voted in 2008—as a senator running for president—to amend FISA further to effectively legalize Bush’s widespread monitoring of voice and Internet communications transmitted to or from the United States. The program requires no individualized suspicion and stirred an outcry when it was exposed. But now, with the administration’s blessing, Congress is poised to extend those FISA amendments and three controversial provisions of the Patriot Act until June 1, 2015.
Bin Laden’s death may not ease the trauma or the threat of terrorism, but nearly a decade after 9/11, the time has come for a serious review of the security measures enacted during that spasm of fear.
The intervening years have been instructive. To begin with, very few terrorist plots have been uncovered by the sweeping powers to intrude into innocents’ private lives under various post-9/11 statutes, according to reports by the inspectors general of key intelligence and law-enforcement agencies. Analysts and translators are said to be drowning in so much information that crucial dots are not being connected.
Further, officials are watching people who are suspected of nothing, and are two or three times removed from those believed to have links with terrorist groups. The purpose, to diagram webs of contacts, relies heavily on the National Security Letter, a subpoena that can be issued by the head of any FBI field office. Broadened by the Patriot Act, it requires neither probable cause nor a judge’s signature, and it comes with a gag order (which may be challenged in court) prohibiting the recipient from saying anything about it to anyone except a lawyer.
This is an example of President Obama’s unwillingness to relinquish powers he denounced as a candidate. “No more National Security Letters to spy on citizens who are not suspected of a crime,” he declared categorically on Aug. 1, 2007, early in his campaign. But on his watch, 50,000 have been served annually on libraries, banks, Internet providers, telephone companies, and other institutions holding private records of millions of Americans. Instead of asking Congress to place this device under judicial oversight where it belongs, officials last year suggested extending the letter’s reach into unspecified Internet activity.
Undoubtedly the world from the White House looks scarier than the world from the campaign trail. But we cannot put a final end to bin Laden’s destructive legacy unless we repair the liberties eroded in his name.
David K. Shipler’s latest book is The Rights of the People: How Our Search for Safety Invades Our Liberties. He writes online at The Shipler Report.