Trib: A Government's Gotta Do What a Government's Gotta Do
What is a civil libertarian anyway? Is it anyone who believes in civil liberties, or only the zealot who champions those liberties to the point where they get in the way of national security? It was disconcerting that the Tribune's recent series of editorials "Security vs. Liberty" repeatedly used the phrase in a context that seemed vaguely pejorative, as if collectively dismissing critics of post-9/11 security measures as Chicken Littles.
"Without civil libertarians to tell us of the alleged erosion of our civil liberties" since September 11, declared "Protecting rights in time of war," the November 2 editorial introducing the seven-part series, "most Americans would have never noticed a difference. What is striking about the climate for dissenters and foreigners is not how much things have changed, but how little."
The November 9 editorial, "Tearing down intelligence walls," was just as sanguine. "Civil libertarians insist that law enforcement agencies will use terrorism probes to, in the words of the American Civil Liberties Union, 'make an end-run around the Constitution.' The theory is that because intelligence investigations can be launched with less evidence than criminal inquiries, which require 'probable cause' that the subject has committed a crime, the government will find ways to classify garden-variety crimes as precursors of terrorism. That, they warn, would gut the constitutional protection against unreasonable searches."
The Tribune rejected the end-run theory: "The fear rests on a mistaken premise....The government can get a FISA [Foreign Intelligence Surveillance Act] warrant only if it has probable cause that someone is involved in espionage or terrorism activities--which happen to be crimes."
Reading these editorials, I hoped that at some point the Tribune would say enough about civil libertarians to make clear why it was distancing itself from their company. After all, much as I want our newspapers to be coldly clear-eyed in assessing dangers to the American people, I'd like to think there's a warm spot in their hearts for the Bill of Rights.
A civil libertarian would recoil from language as Orwellian as "the USA Patriot Act." Law professor David Cole of Georgetown University is a civil libertarian, and his recent book Enemy Aliens dryly notes that the 342-page bill signed into law six weeks after September 11 was "awkwardly titled the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, so that its acronym...would send the message that to oppose it was unpatriotic." Cole's book has much more of a problem with the Patriot Act than the Tribune, which settled for calling it "grandly named."
"The law is not perfect," said the November 5 editorial "Myth, reality and the Patriot Act," "but it has hardly been the assault on civil liberties depicted by its most vociferous critics." Much of that vociferousness the Tribune blamed not on the act itself but on Attorney General John Ashcroft's maladroit hawking of it. Ashcroft, said the Tribune, "has been almost contemptuous of concerns about civil liberties. He conducts himself as though he thinks that inflaming critics will deter Al Qaeda."
Cole read the entire "Security vs. Liberty" series at my request. Afterward we talked. "There were specific issues on which I would disagree, but on plenty of it I would agree," he said. "The overall message that the Patriot Act was largely a prudent response I thought was a little too much, a little self-satisfied."
But the editorials were written by Steve Chapman, and Chapman, a libertarian, is by any reasonable measure a civil libertarian too. He's simply one who's parted company with other civil libertarians over means and ends. "I think it's just an honest disagreement on complex issues that involve a lot of unknowns and competing concerns," he e-mailed me. "I still call and get along with the ACLU Washington people, because they've known me long enough to know I share a lot of their basic values. I think I put a bit higher priority on preventing terrorism, and they put a bit higher priority on protecting civil liberties."
He explained, "I used the term civil libertarian because that seems like a fair characterization of the critics, and I wouldn't have used it if I thought it carried any pejorative implication--which it certainly doesn't with me. If I had wanted to use a disparaging term, I could have done a lot better than that."
Chapman's series originated with a conversation months ago between Tribune editor Ann Marie Lipinski and editorial page editor Bruce Dold. "We had not seen a thorough analysis of the strengths and problems of the Patriot Act and other measures where matters of security clashed with civil liberties," Dold told me, "and we agreed that Steve would be the best person to do that. He's very knowledgeable about these issues, brings a libertarian perspective and is often critical of George Bush in his columns." Chapman got the assignment in June. "I told him I wasn't looking for any particular outcome," said Dold. "I told him I wanted to learn."
Chapman showed more faith than Cole in the willingness of courts and Congress to strike a sensible balance between security and liberty. Enemy Aliens fears that repression will spread; "Security vs. Liberty" expects it to be reconsidered and moderated. Chapman wrote that "much of the condemnation of the Patriot Act has been overwrought, even irresponsible." Yes, the law needed to be refined, but he expected that it would be.
Enemy Aliens argues that since September 11 the federal government has traded "foreign nationals' liberties for citizens' security"--a strategy Cole calls counterproductive and morally and constitutionally wrong, as well as a slippery slope toward the eventual suppression of citizens' liberties. Much of the Patriot Act, he writes, institutionalizes this double standard. "It makes foreign nationals deportable for wholly innocent associational activity, excludable for pure speech, and subject to incarceration on the attorney general's say-so, without a finding that they pose a danger or a flight risk." But its "most controversial intelligence-gathering amendment" can be applied to citizens and aliens alike: "It authorizes secret searches and wiretaps in criminal investigations without probable cause to believe that the target is engaged in criminal conduct or that evidence of a crime will be found."
This is the sort of "end-run around the Constitution" that the Tribune told us not to worry about because a warrant authorizing it requires "probable cause that someone is involved in espionage or terrorism activities." But Cole says, "That's just wrong. All the government has to show is that the person is an employee of a foreign government or a foreign political party or even of any organization that has a majority of non-American members--such as Amnesty International."
Curiously, Chapman's editorial assuring us that the state couldn't exploit new antiterrorism powers to prosecute "garden-variety crimes" appeared a few pages away from a Tribune news story reporting that the state just had. FBI agents in Las Vegas had used a provision of the Patriot Act "to streamline their efforts to obtain the financial records of several suspects" in a bribery case. They'd exploited a section of the act allowing them to seize financial records without a grand jury subpoena.
The Tribune article quoted an ACLU attorney who recalled that back in 2001 his organization had warned that the Patriot Act would not be limited to fighting terrorism: "If the government is allowed to use it, they will. Here they have." And it quoted a Justice Department spokesman replying with a shrug: "The Patriot Act was not meant to be just for terrorism. A lot of the uninformed criticism was obviously misplaced."
Chapman e-mailed me a response to all of this. "I'm open to the idea of narrowing the definition of foreign agents or limiting the use of information from FISA wiretaps to terrorism-related crimes, assuming it could be done in a practical way. But I suspect that if the government were to use evidence from a FISA wiretap to prosecute a foreigner working for Amnesty International for garden-variety criminal offenses--a purely speculative possibility--the courts would take a very dim view of it."
As for the Las Vegas story, he wasn't familiar with it but said, "It doesn't strike me as the sort of thing that demanded greater law enforcement powers."
Chapman's most ambivalent yet most pointed writing (aside from what he had to say about Ashcroft) addressed the detention of immigrants held while the government tried to figure out if they were dangerous. "After Sept. 11," he wrote in "Prisoners in the war on terror" (November 16), "the government arrested some 762 immigrants for possible terrorist ties and held them for weeks or months on immigration charges that normally would not have led to extended confinement. The government released these detainees only after the FBI had satisfied itself that they posed no threat.
"What these detainees have in common is that they were not given the usual protections that distinguish our criminal justice system. To many civil libertarians, these and other detentions of enemy combatants are a moral outrage....But the criticisms often seem to stem from a basic misperception about the nature of the challenge the U.S. government faces.
"This is a most unusual war, but it is indisputably a war. And measures that would be indefensible during peacetime are often necessary and even urgent when the nation is grappling with a mortal threat."
Having put those cards on the table, Chapman wrote for several paragraphs about enemy combatants and military tribunals. When he returned to the subject of immigrants held for immigration violations, it was in a different tone of voice. He called the "protracted detention of hundreds of illegal immigrants without trial [Enemy Aliens puts the total number of detentions at above 5,000] the most serious infringement on liberty in the war on terror." Chapman hastened to add that given September 11 and the anthrax scare that followed it, "it would have been irresponsible to ignore anyone with possible Al Qaeda connections who might have been plotting another strike." Even so, "no one can look back with unalloyed pride on the episode....Many were subjected to harsh conditions and some were allegedly subjected to physical abuse. The dragnet now looks excessive--since, in the end, none of those held were indicted on terrorism charges."
But Chapman believed the Justice Department had learned from its mistakes. "Should another major terrorist attack occur on U.S. soil, it's unlikely the detentions would be repeated on a comparable scale--nor should they. The administration should be implementing procedures to make sure of that."
One reason a second wave of detentions is unlikely is that so many foreigners detained in the first wave have been or are in the process of being kicked out of the country. This Monday the Department of Homeland Security announced that it was pretty much abandoning the 18-month-old program that obliged foreign men from Muslim countries to register and face questioning as what the government called "high national security concerns." Since Ashcroft launched the program, some 83,000 foreigners had registered, and deportation proceedings had been started against almost 14,000 who'd violated some immigration law. As Chapman wrote, not a single one has been charged with terrorism.
Editorial pages are better at telling than showing. Chapman's carefully measured polemics put the Tribune on the record about the detentions. But the front page damned it.
Three Tribune reporters went searching in places such as Islamabad and Karachi for 75 Pakistani immigrants who'd been detained for up to several months and eventually flown in restraints and under guard back to Pakistan. Their story was told in "Tossed Out of America," a three-day series that began on November 16.
"Their stories illustrate how the campaign has ruptured families, separating men from their U.S.-citizen wives and children," wrote reporters Cam Simpson, Flynn McRoberts, and Liz Sly. "They show how the government effectively put a premium on catching scofflaws from mostly Muslim nations while allowing hundreds of thousands of violators from other countries, including convicted criminals, to wander free. The entire exercise--carried out by executive fiat and largely outside the realm of public debate--has not led to a single public charge of terrorism. At the same time, the policies have sowed resentment in the communities in America and abroad that are needed to thwart potential terrorists, deepening suspicions held by Muslims that the U.S. government is anti-Islam."
That's the counterproductiveness rued by Cole in Enemy Aliens. "Tossed Out of America" wasn't written to accompany the "Security vs. Liberty" series--Simpson, who proposed the project, says he had no idea Chapman's series was in the works. But its human specificity made a stronger case against government policy than the editorial page's careful criticism.
Ten months from now the Tribune editorial page will endorse George W. Bush for reelection. When Chapman's editorials began, when I had no idea who was writing them, I wondered if they would overcome my skepticism about the ability of the Tribune to assail the civil liberties record of their candidate. They didn't. Chapman himself did. "You certainly know from my columns that enhancing Bush's re-election prospects is not a priority of mine," he e-mailed me. "I didn't give a second's thought to our endorsement prospects, and I detected no pressure from [Dold] to shape the series to make it easier for us to support Bush next year."
I absolutely believe him. He called civil liberties in America the way he saw them--less threatened than they seem to me, or to David Cole, or the ACLU, and some days to other parts of his own paper.
W hen the Department of Homeland Security announced this week that it was suspending the most onerous requirements of its "special registration process for certain non-immigrants," it obliged journalists by providing them with a FAQ sheet--though the idea of "frequently asked questions" about a decision it was just announcing is an odd one.
"Was this decision made as a result of recent public pressure?" was the second question on the sheet.
"No" was the answer--lest critics like the Tribune or David Cole think they have any sway over government policy. The answer went on, "DHS have [sic] been reviewing NSEERS information for the past few months to determine if NSEERS is being executed in the most productive and effective manner, or if it needs to be changed."
NSEERS stands for National Security Entry/Exit Registration System. It's an acronym that makes one appreciate "USA Patriot Act."
The next question was "Why continue with any NSEERS activities--you haven't caught any terrorists and you have just upset thousands of people based on their race and religion."
"We have caught suspected terrorists under NSEERS" was the answer. "While they may not be charged with terrorism grounds [sic] of inadmissibility or removability, that is not an indication of whether terrorists were caught. A non-immigrant visitor who overstays a visa, is present without inspection, commits a crime or fraud is just as removable under those grounds as terrorism grounds."
The FAQ concluded with, "Is the announcement an acknowledgement that NSEERS was a failure?"