US Civil Liberties After 9/11

John F. Freie

In the spring of 2002 Chris Fitzpatrick returned to his suburban San Francisco apartment after a short trip. He noted that someone had been inside his apartment looking for something. This was confirmed when his neighbor informed him that the police had been looking for him, had questioned his neighbors about him, and had entered and searched his apartment thanks to the landlord who had unlocked the door for them.

After numerous phone calls to the local police department Chris was able to reconstruct what had happened. Indeed, the police had entered and searched his apartment without a warrant, or without his consent or presence. They came dressed in bomb gear and explained that their intrusion was in the name of the country's "welfare." They said this overrode whatever right to privacy he might claim. They had with them a series of photographs of strange images, one of which was a child's face covered in blood from a "terrorist attack," that had been given to them by a Walgreens photo clerk. The clerk and the police had labeled Chris Fitzpatrick as a potential "bomb threat."

As it turned out, of course, Fitzpatrick was no terrorist threat at all. He is an independent film and music artist. The photos were stills from a Takuji Murata film entitled "Ash" for which he was commissioned to compose music. This incident exemplifies the mentality that has been produced by the government's anti-terrorism rhetoric, the private sector's response, and the media hype surrounding the "War on Terrorism."

The Government Response

In October 2001, within five weeks of 9/11, Congress _ with amazing speed _ passed the 342-page Patriot Act (PA). On October 26 George Bush signed it into law. The PA amends over 15 statutes and includes many surveillance provisions that had languished in Congress for years without political support. Among its expanded tools for surveillance are the loosening of the restrictions regarding wiretaps, search warrants, and subpoenas.

Under previous law, agents using a search warrant had to notify the person whose premises were searched that the search occurred and what was confiscated. Under the PA, searches may be made without prior notification and the government may delay for a "reasonable period" notifying the person that a search had occurred. In addition, the PA expands the type of information that may be obtained without a court order, including credit card information, bank account numbers, and information about computer usage such as network addresses, and records of session times and durations. Perhaps the most significant change in surveillance has occurred with respect to information that the federal government may now obtain from internet interceptions. The PA allows the government to unleash its diagnostic tools (e.g., Carnivore) that identify potential "terrorists" on the basis of profiles of user communications. What's more, the PA allows internet service providers to voluntarily hand over all "non-content" information requested without the need for any court order.

While the Patriot Act threatens to undermine our privacy, the executive branch's activities with respect to jailing people and denying them basic rights guaranteed in the Constitution has led to the most news coverage and has provoked the most criticism from civil rights groups. Concerns include: (1) people held simply for immigration violations; (2) people jailed as material witnesses; and (3) US citizens who have been labeled "enemy combatants" and imprisoned without being charged with a specific crime. In the wake of 9/11 over 1,200 people were detained for violating immigration laws or as material witnesses. Most of these were held for months without access to an attorney and without the press even knowing their names. Today, fewer than 200 remain in detention, with most others having been deported or released. The trials of those accused of violating immigration laws were held secretly by order of immigration judge Michael Creppy. The government was able to question the detainees without the presence of an attorney. Most cases involved Arab and Muslim men.

A smaller number of people have been held as material witnesses to the 9/11 attacks. While the law allows for the detaining of material witnesses, the Bush administration has used this power in an unusual fashion. The material witness law has, prior to 9/11, been used to hold people who will be testifying. But in this instance people are being held prior to even a grand jury investigation. What's more, they have been held for an extended period of time (in some cases as much as 90 days) without being allowed access to a lawyer. It is unknown how many people are still being held as material witnesses, or even their names. US District Judge Gladys Kessler ordered the government to release the names of those being held. The US government has appealed that decision. Kessler stated, "Secret arrests are a concept odious to a democratic society."

While many in the US have heard of the jailing of immigration violators and material witnesses, there has been little public support for extending them their rights. Many have even claimed, inaccurately, that constitutional protections of civil liberties do not extend to non-citizens. But the recent jailing of Yasser Hamdi and Jose Padilla challenges even that notion. Hamdi, a natural born US citizen, was captured by the Northern Alliance forces in Afghanistan and handed over to the US military. He has been classified as an "enemy combatant" and is being held in the naval brig in Virginia. Padilla, also a US citizen, was arrested in Chicago but has not been indicted. He is now being held in a naval brig in South Carolina, also classified as an "enemy combatant." Neither has access to a lawyer and, according to the administration, each can be held indefinitely without being convicted.

The Private Sector Response

Artist Chris Fitzpatrick's apartment was searched thanks to a tip from a Walgreens photo clerk. The clerk was following company policy. In fact, many US businesses have willingly turned over data to investigators developing "terrorist" profiles from computerized data about shopping habits, travel itineraries, hotel stays, and car rentals. In a recent poll of businesses associated with the travel industry, 64 percent said they had already turned over such information to the government.

Government investigators are now developing a system of algorithms that will sift through such data and assign a "potential terrorist quotient" to people. The data will then be used to hunt for potential "terrorists." In addition, the government will soon initiate Attorney General Ashcroft's Terrorism Information and Prevention System (TIPS) to encourage people to provide information about fellow citizens to government investigators. Government has set the tone for what is acceptable policy. Many businesses have decided to favor "security" rather than privacy and to cooperate with government investigators.

The Public Response

Although civil liberties in the US seem under attack as perhaps never before, there have been few polls measuring public opinion about the government's domestic "war on terrorism." Yet, the polls that have been taken sketch a disturbing picture.

In general , according to these polls, most US citizens believe that the terrorist threat is real and perhaps even underestimated by the government. Most — between 54 and 75 percent — believe that detaining immigrants for visa violations and jailing US citizens as material witnesses without indicting them is justified. Many — between 40 and 47 per cent — are willing to give up some of their liberties for this "war."

Almost 30 percent support placing legal immigrants in internment camps as a method to fight the "war on terrorism." Nearly 30 percent believe the First Amendment goes too far in guaranteeing rights. Seventy-eight percent support more laws restricting privacy. With little public discussion about what restrictions of our liberties — if any — are needed to make us safe, many are willing to give up rights that others have fought to obtain. Many believe that the restrictions will affect others, not themselves. Yet as Chris Fitzpatrick found out, this might not be the case.

Privacy is not an abstract idea; it is central to what it means to be human. We tend to think about democracy too much in terms of elections rather than as the way in which we live our lives. Democracy, as opposed to other forms of government, values human dignity and it does so primarily by providing safeguards that protect our privacy. But, regardless of what laws may say, the ultimate safeguards in a democracy must come from a vigilant public. The price of liberty is eternal vigilance — a vigilance not directed at chimerical "terrorists," but at government schemes to erode our civil rights.

John is Professor of Political Science at Le Moyne College, and is author of the book, Counterfeit Community. He writes frequently on US national politics.