"If you don't do anything wrong, you don't have anything to worry about." This phrase is destined to be with us for all time, kept alive by the same people who cheerfully volunteer that they are willing to trade some "liberty for security." Susan N. Herman's new book, Taking Liberties: The War on Terror and the Erosion of Democracy, provides a sharp rebuttal to this compliant mind-set that gave the government more power over the rest of us.
Herman is president of the American Civil Liberties Union and a professor at Brooklyn Law School. She specializes in constitutional law, criminal law, and terrorism law, and most of her written work since 2001 has dealt with aspects of the still-outrageous Uniting and Strengthening America by Providing Appropriate Tools for Intercepting and Obstructing Terrorism Act, or the USA PATRIOT Act as its better known. The book is her 10th anniversary present to the Act, an accounting of its achievements in regulating us, which are deplorable, and our achievements in regulating it, which are negligible.
Taking Liberties is a great catalog of personal injustice anecdotes, with story after story of people who don't do anything wrong yet have plenty to worry about—they get deported, imprisoned without charge, tortured. Charities are run out of business, businesses are run out of business, databases are plundered. Your co-worker sees something and says something. For instance, he sees you fixing your car, and he says you're modifying it to carry bombs. You get put on a watch list and consequently suspended from your job. You try to get yourself removed from that list, and there is no procedure for that. You sue the government. It refuses to say whether you're on any list to begin with—meaning you have no legal standing to make your complaint. Case dismissed.
Or maybe your business is served with a national security letter, demanding—without warrant—transaction information on one, or half, or all of your clients. That might not seem so constitutional to you, but it comes with a gag order forbidding you to speak of the letter to anybody else. And you can't take it to court because legally the letter doesn't exist.
Some of these stories will be familiar because they appear in the news cycle from time to time for an afternoon, providing a charge of delicious drive-time outrage. But you always forget the names and details and legal particulars, and then the next time someone tells you what not to worry about you never can remember what to tell him in response.
In addition to compiling all these outrages in one handy place, Taking Liberties does quite a good job of detailing the mechanics of the laws, policies, and procedures that created this havoc and in most cases made legal redress unattainable. The PATRIOT Act and its associated practices have a Fight Club aspect: The first rule of the PATRIOT Act is to never mention the PATRIOT Act. Ultra-secrecy and executive privilege make it nearly impossible for people injured by the law to show (or even know) that they have been, which means they cannot challenge the law in court. Like the U.S. facilities at Guantanamo Bay, the Act is an island free from constitutional constraint.
Herman illustrates very clearly how compliant the court system has been in approving nearly every assertion of executive necessity, and how Congress has relentlessly declined to give the PATRIOT Act's excesses any meaningful review. With two of our three branches of government recusing themselves, what's an executive branch to do but whatever it wants? Herman reserves special criticism for the Obama administration's failure to back off from the Bush administration positions and for advancing executive power in some instances. In the case Jewel v. National Security Agency, for example, the Obama Justice Department "came up with an audacious standing argument, convincing the court that no one should be allowed to challenge a spy program if so many people have been spied on that grievances have become 'generalized.'?"
The book has one major flaw: It fails to offer any fundamental, principled argument for why civil liberties should take priority over security. It gives the lie to the idea that doing no wrong means having nothing to worry about, but it never gets at the deeper disorder of Americans' willingness to trade away our rights.
Some of my best friends are the sort of people who, unless seriously provoked, semiconsciously assume that "security," in the PATRIOT Act sense, is both pre-emptively desirable and somehow possible. They may not agree with the 25 percent of polled Americans who say they'd be willing to "trade some rights for security," but they don't actively disagree either. People like this generally prefer "fixing" the law rather than repealing it.
But PATRIOT Act "reform" is not the way; the thing is irreparable. Better oversight of the National Security Agency as it hoovers up every email in the world won't help either. Rather, the practice of nonspecific total surveillance must be abolished.
Herman's presentation only works if you are the kind of person who already believes that it's wrong to erode, evade, or otherwise screw around with the Constitution. She is great at delineating exactly how a national security letter violates the First, Fourth, and Fifth Amendment rights of multiple parties. She's offering Con Law 101, a class every American should have to retake every three to five years. That's a fine way to talk about the PATRIOT Act's obscenities, so long as we all already agree on the principle that constitutions are not to be trifled with no matter the circumstances.
But not everyone thinks that way. The Supreme Court doesn't; it has spent decades grinding the Fourth Amendment down to a nub of its former self. Here again, Herman provides an appropriate sketch of that sorry judicial history. But her overall approach amounts to criticizing the PATRIOT Act on technical grounds, for being bad law. Which it is, but that's not the vital critique.
The fact is that even if the citizen-surveillance provisions of the PATRIOT Act worked "perfectly," causing every terrorist to be arrested while wrecking no nonterrorist lives, it would still be wrong. What Herman never gets around to saying is something like this: Rights must always have priority over security.
It's not that Taking Liberties lacks principle. Herman cites Hannah Arendt on action and repeatedly warns against unsupervised arbitrary power in a very Hayekian way. But by making her book a series of human interest stories, Herman reduces everything to particulars, leaving the impression that justice can be achieved with a comprehensive enough system of compensation for unfortunate collateral damage.
Worse, it is only natural when choosing these anecdotes to select stories from the most blameless. These cases are all clearly unfair. But won't someone think of the criminals? I am quite willing to believe these vast, abhorrent data sweeps might accidentally pick up one or two "bad guys," to use the Bush-preferred term. But as a citizen of this country I want to be dead certain that any jackass who intends me harm is going to go completely untortured and receive a fair, speedy, and open trial. You don't treat people right because they deserve it; you treat them right because everyone deserves it. As a criminal law specialist Herman knows this; as an author she avoids it.
Clarke Cooper is a writer living in Brooklyn.