Liberty Wins -- So Far
Bush Runs Into Checks and Balances in Demanding New Powers
By Jeffrey Rosen
[Washington Post - Sunday, September 15, 2002; Page B01]
In the weeks and months after 9/11, we repeatedly heard that civil liberties in America would face their greatest challenge in a generation. Recalling the mass arrest of anarchists after World War I and the internment of Japanese Americans during World War II, civil libertarians predicted similar excesses. While nothing quite so dramatic has materialized during the past year, many defenders of liberty on both the right and the left have assailed the administration's actions and arguments.
Their fears raise a question: Will this period be regarded by future historians as another dark age for the balance between liberty and security? It's true that the Bush administration, like its predecessors in wartime, has pressed for sweeping increases in executive authority, based on the novel argument that the president has the unilateral power to detain and investigate American citizens and alien residents without oversight from Congress or the courts. But the more surprising development is that the courts and Congress, unlike their predecessors in wartime, are rejecting the president's most extreme claims.
In a series of court cases, federal judges have insisted on the importance of judicial oversight of the president's powers of detention and deportation. And in the debates over the USA Patriot Act and the homeland security bill, libertarians on the right have joined with civil libertarians on the left in persuading Congress to repudiate the Bush administration's more draconian proposals for expanded surveillance authority. In this sense, the greatest protector of American liberty during the past year turned out to be something so basic that we often take it for granted: the checks and balances provided by the separation of powers in the Constitution.
In the course of researching the state of liberty and security after 9/11, I've been especially struck by how restrained America's legal response appears when contrasted with that of our European allies. Although they weren't directly attacked, the countries of the European Union passed anti-terrorism measures during the past year that are far more sweeping than anything adopted in the United States. In October, France expanded the powers of the police to search private property without a warrant. Germany has engaged in religious profiling of suspected terrorists, a practice that was upheld in a court challenge. In Britain, which has become a kind of privacy dystopia, Parliament passed a sweeping anti-terrorism law in December that authorizes a central government authority to record and store all communications data generated by e-mail, Internet browsing or other electronic communications, and to make the data available to law enforcement without a court order. In May, the European Union authorized all of its members to pass similar laws requiring data retention.
The Bush administration has tried to emulate its European allies by expanding executive authority in similarly dramatic ways. It asserted that the president may designate citizens or aliens as enemy combatants and detain them indefinitely without judicial review. It claimed that the president may deport certain aliens based on secret hearings whose existence is withheld from the pressand the public. And it attempted to blur the legal lines that separate domestic law enforcement from foreign intelligence gathering, transforming the FBI into the equivalent of Britain's domestic security intelligence agency, MI5.
What distinguished America from Europe, however, is how quickly all three of these extreme positions met with opposition from the other two branches of government. In the case of Yaser Esam Hamdi, a 21-year-old American citizen seized on the battlefield in Afghanistan and now locked in the Navy brig in Norfolk, the U.S. Court of Appeals for the 4th Circuit refused to embrace what it called the "sweeping proposition" of the Bush administration -- "namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." Hamdi, who is being held without charge as an enemy combatant, is something of an accidental citizen -- his parents were Saudis who were working here for a Saudi company when he was born. But other countries have been even less solicitous of their citizens since 9/11. The new British anti-terrorism law (now under appeal) gives the home secretary unilateral power to designate as an "international terrorist" anyone whom he perceives as a "risk to national security," and to indefinitely detain the person without charge if the individual can't be deported.
American courts have also been aggressive in rebuffing the administration's effort to keep secret the names and deportation hearings of arrested aliens. In the months after 9/11, the government rounded up, arrested and jailed more than 1,000 non-citizens in America as part of its anti-terrorism investigation. Attorney General John Ashcroft refused to release the names, claiming implausibly that he was protecting their privacy. In August, Judge Gladys Kessler of the U.S. District Court in Washington rejected Ashcroft's interpretation of the Freedom of Information Act and the laws governing grand jury secrecy. She ordered Ashcroft to release the names, insisting that any need for secrecy could be established on a case-by-case basis.
Some of the judicial decisions rejecting the Bush administration's demands for unilateral authority after 9/11 have been legally adventurous. A week after the attacks, at Ashcroft's direction, the chief immigration judge ordered all proceedings in deportation hearings to be closed to the press and public, including family members and friends, in cases where the government claimed a "special interest." But in August, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit struck down the order as a violation of the First Amendment. The government could close individual cases, the appeals court held, but it couldn't unilaterally impose secrecy across the board. This conclusion was arguably a stretch: The Supreme Court has never held that the First Amendment requires the press and public to have access to civil as opposed to criminal trials. But the appeals court's refusal to defer to the executive branch even in a close case shows how confidently judges are asserting their authority after 9/11.
Finally, the courts have resisted the administration's efforts to dismantle the wall that separates domestic law enforcement from intelligence gathering. In March, Ashcroft proposed new guidelines allowing ordinary prosecutors to consult extensively with FBI agents who are conducting foreign intelligence operations, resurrecting the specter of domestic surveillance by the FBI that Congress specifically ruled out in the 1970s. In an opinion made public last month, the seven members of the secret Foreign Intelligence Surveillance Court unanimously rejected the Bush administration's new guidelines, saying the rules subverted Congress's intent. "To protect the privacy of Americans in these highly intrusive surveillances and searches," the seven judges insisted on restoring the "bright line" that prohibits criminal prosecutors from directing and controlling the investigations of foreign spies and terrorists.
Congress, too, has resisted the Bush administration's most extreme demands for increased surveillance authority. Since 9/11, an unusual congressional alliance of civil libertarian liberals and libertarian conservatives has forced the administration to remove some of the most draconian provisions from the administration's proposed drafts of the USA Patriot Act and the homeland security bill. At the insistence of House Majority Leader Dick Armey (R-Tex.), for example, half of the new surveillance authorities in the Patriot Act will expire after four years, and the administration must report to Congress about its deployment of the Carnivore e-mail surveillance program. The House's version of the homeland security bill explicitly opposes proposals for a national identification card and for Ashcroft's TIPS program, which would encourage citizens to spy on each other. The USA Patriot Act, in its final form, includes new powers for e-mail surveillance and secret searches that the Clinton administration had sought -- unsuccessfully -- after the Oklahoma City bombing. But it would have been more extreme without the principled oversight of Republicans and Democrats suspicious of government power.
There were anti-government libertarians, of course, in the 19th and early 20th centuries, but there was no judicial tradition of vigorous protection for free speech until after World War II. This is why President Woodrow Wilson's attorney general, A. Mitchell Palmer, had a free hand to arrest thousands of alleged communists in 1919 and 1920 and hold them without trial before deporting many of them. Until Vietnam, Congress was similarly deferential to the president during wartime: Even FDR's isolationist critics abandoned their opposition after Pearl Harbor, and none questioned the internment of Japanese Americans.
What explains the refusal of courts and Congress during the latest crisis to grant the Bush administration's most extreme demands for unilateral authority? Part of the explanation may reflect what Chief Justice William Rehnquist has written about the history of civil liberties during wartime. According to Rehnquist, the increasing judicial and congressional concern about civil liberties during the major wars of the 20th century has led to progressively fewer attempts at executive branch overreaching. So the reaction of the courts and Congress, one could argue, is in keeping with the established trend. Also, as Cass Sunstein and Jack Goldsmith of the University of Chicago have suggested, Americans in general -- as well as judges and legislators in particular -- may be less deferential to authority, and more committed to civil liberties, than they were before the legal and social transformations that followed the 1960s.
In the case of the courts, we may be seeing the bright side of the attitude of judicial supremacy that has become ever more pronounced since the 1960s. On both the left and the right, judges over the past four decades have become increasingly reluctant to defer to the political branches. When confronted with unilateral claims of executive authority, judges have seemed almost indignant at the administration's refusal to respect what they see as their unique prerogative to say what the law is. Judges who have no doubt about their own ability to resolve political questions -- from abortion to a presidential election -- are not likely to be cowed by the executive's demands for deference during a time of crisis; instead, the courts expect Congress and the president to defer to them. By refusing to make even a feint of respect toward judges who have become accustomed to casting themselves as national saviors, the Bush administration may be provoking a backlash even among more conservative judges who are instinctively inclined to show the flag.
Among libertarians in Congress, the dynamic is different. There have always been minority groups in America who are suspicious of central government, from the anti-Masons in the 19th century to the John Birch conservatives of the 1950s. What is distinctive about our most recent debate is the alliance of libertarian conservatives whose dislike for federal surveillance was honed during the Clinton era with civil libertarian liberals who remember President Richard Nixon's surveillance of Vietnam protesters.
In suggesting that the legal response to 9/11 might have been far more extreme if Congress and the courts had not opposed the Bush administration's unilateral demands, I don't mean to underestimate the challenges ahead. As William Stuntz of Harvard Law School has argued, legislative and judicial responses to visible crime waves tend to be felt a few years after the threat occurs. Certainly, if there is another terrorist attack, libertarians in Congress and the courts may not be able to resist the executive branch's and the public's unrealistic demand for security above all. And the administration is now considering a series of ill-designed security technologies -- from trusted-traveler programs to data mining and profiling at airports -- that might threaten privacy without increasing security, and might linger long after the immediate threat has passed.
Nevertheless, a year after 9/11, it's worth engaging in a cautious celebration of the resilience of our constitutional checks and balances. So far, in the face of great stress, the system has worked relatively well. The executive branch tried to increase its own authority across the board, but the courts and Congress are insisting on a more reasoned balance between liberty and security. Of all of the lessons about America's strength that have emerged since the attacks, this is one of the most reassuring.
Jeffrey Rosen is an associate professor at George Washington University Law School and the legal affairs editor of the New Republic. His book on liberty and security after 9/11 will be published by Random House next year.