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I watched that black cloud billow up over downtown from the window of my Manhattan apartment, just as I can only assume Heather MacDonald did. So I don't need to be reminded what happened on September 11 two years ago. I don't need to be reminded what, precisely, our law enforcement agencies are now trying to prevent that from happening again. And if I am less eager than Mac Donald to hand those agencies broad new powers, it is not because I need to be reminded of what is at stake. Even in the face of the awful memory of 9/11, certain facts remain, and make it impossible for me to erase my sense of trepidation at the prospect of a "new normal" that includes the hurried expansion of a government's power to spy on its citizens.
The first of those facts is that, as Mac Donald notes, the war in which we now find ourselves engaged is, to put it mildly, "an unconventional one." Our enemies have soldiers, but no uniforms; bases, but no palaces above which to run the white flag; leaders, but no sovereigns to surrender. They move among Americans and, as John Walker Lindh and the alleged terrorist Jose Padilla prove, they may be Americans. The new challenges presented by the war on terror may indeed require new powers, but the form that the war is taking also gives us special reasons for worry. Mac Donald is, of course, right that September 11 would have been treated as an ordinary, familiar act of war if ordered by Saudi Arabia. But so would the bombing of the Murrah Building in Oklahoma City. Which is to say, if things were different, things would be different. But al-Qaeda is not Saudi Arabia, and that makes a difference. It makes a difference because if we take Mac Donald at her word, the domestic war never ends. Al-Qaeda is not even a sole organization, in the usual sense, but a loose coalition of groups. This is therefore a war with no victory conditions, short of the total elimination of groups of people who hate the United States enough that they might act to harm its people. That amounts to requesting special crimefighting powers, to be surrendered just as soon as there is no more crime. To take literally the notion that the terror war should be treated as a conventional war is, in effect, to accept permanent war powers: The horror of 9/11 will always loom in the background to justify continued expansion of powers.
Civil liberties aren't worth much to a corpse. Despite my remarks above, and despite what Mac Donald implies, I don't think law enforcement must pursue al-Qaeda agents precisely as it might a ring of hubcap thieves. But we don't get to talk much about the reasonable, balanced steps we might take in the terror war, because Mac Donald takes the same all-or-nothing "blunderbuss" approach she attributes to civil libertarians. If you have anything bad to say about PATRIOT, then you must think federal agents don't need roving wiretap authority for terrorists. In fact, once you clear away the smoke and mirrors, my original argument, as opposed to a hypothetical argument for total inaction, isn't much affected by Mac Donald's riposte.
The main substantive point that needs to be addressed pertains to the "business records" provision of PATRIOT. Actually, the language of the bill seems to extend not merely to records but to "tangible things"—which is to say, just about anything, but we'll let that slide. Mac Donald argues that there is no Fourth Amendment right in information disclosed to third parties, such as banks or bookstores. And she's right in the sense that at least according to the main line of jurisprudence in this area, the line of cases following U.S. vs. Miller, the court believes that once you reveal something to anyone, you've effectively revealed it to everyone, the government included. The problem with this line of cases was succinctly diagnosed by Judge Richard Posner in The Economics of Justice:
[These cases], taken at face value, permit privacy to be invaded with impunity by a simple two-stage procedure. In the first stage the government requires the citizen to provide or make available to the government certain information; in the second the information is supplied to a law enforcement agency. The individual has no remedy at either stage. He is entitled to object neither to the requirement of providing the information if the requirement is reasonable, nor to the release of the information by the agency that obtained it from him, since the agency is in lawful possession of the information.
I don't know if those cases would have been decided the same way had the Internet and the routine exchange of information in accordance with explicitly posted privacy existed at the time, but let's even assume that this awful line of cases is correct. At the very least, one had the option of challenging those information requests in court. That option no longer exists. Incidentally, this very topic will be the subject of our November cover story, an excellent piece by John Berlau.
Then there's the issue of the FISA courts. Let's grant, arguendo, that the reason FISA requests have pretty much always been granted is that the Justice Department lives in such morbid terror of being turned down on a request for a court order that it previously crossed every t and dotted every i with the scrupulousness of an ACLU attorney. What does "the power to review the factual basis of the FBI's application" now imply? Well, presumably the power to double-check that the FBI really does want the records "in connection with" some investigation intended to "protect against terror." Oh, and there's the comforting addendum that the basis of the investigation can't be exclusively conduct protected by the First Amendment. Still, the "check" on the "factual basis" here consists of confirming that the FBI is really conducting an investigation and really wants information. Does this fool anyone?
Here as elsewhere, Mac Donald's argument rests on acts of misdirection, leaps from the desirability of limited powers to apply to terrorism investigations to a defense of broader, unchecked power that apply not only to suspected terrorists but to anyone. Probably "sneak and peek" searches on terrorists are a good idea. But until the Otter Amendment, which passed the House by a wide margin and has yet to come before the Senate, denied funding for broader uses, those searches were authorized for criminal investigations as well. The ability to share information obtained by grand jury subpoenas is probably useful—but why the resistance to some elementary oversight limiting the way that information is shared? Why not look first at the failure of intelligence agencies to share the information that they were already allowed to share because of jealousy over turf, and then ask how much weakening of the porous wall between domestic investigation and spying is needed? Why assume that the answer to every intelligence failure must be more information, when the glut of information available before 9/11 was so badly used? Roving wiretap authority for suspected terrorists, again, is certainly a good idea. But what are we to make of wiretap orders that must specify neither particular facilities—specific phones—nor particular persons? How on earth does that comport with the Fourth Amendment? Why can't we talk about the kinds of robust oversight that would limit the potential for abuse of these powers, a pressing need when you consider that the PATRIOT Act effectively prevents us from knowing about those abuses if and when they happen? Mac Donald in effect pleads nolo contendere on all these points because she is largely engaged with imaginary interlocutors who believe that the proper response to terror is to begin studying the Koran and await the imposition of Shariah.
In a sense, Mac Donald is right that the more hysterical pronouncements of PATRIOT critics have been counterproductive. There was no real debate before the passage of the PATRIOT Act; debate is sorely needed now. Unfortunately, each side remains engaged with a caricature of the other. I am more than willing to grant that the war on terror may demand special, though limited, powers that we would not have countenanced—did not countenance when the Clinton administration requested them—five years ago. We cannot talk about the wisest way to bound those powers if civil libertarians see every step to remedy intelligence failure as a step on the road to serfdom. But neither can we do so while Mac Donald and others defend PATRIOT as though the alternative to that overbroad act were to do nothing.