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Cato Policy Report, November/December 1996

Combatting Terrorism, Protecting Freedom

Cato Policy Forum

The Cato Institute and the Frontiers of Freedom Institute cosponsored a conference on September 10 titled "Combatting Terrorism, Preserving Freedom." More than a dozen speakers discussed the prevalence of terrorism in the modern world and how it might be countered without infringing on individual rights. Among the speakers were former U.S. senator Malcolm Wallop, now chairman of the Frontiers of Freedom Institute; David Kopel, research director of the Independence Institute and a Cato associate policy analyst; and Nadine Strossen, professor of law at New York Law School and president of the American Civil Liberties Union. Following are excerpts from their remarks.


Malcolm Wallop: I want to welcome you to this conference sponsored by the Cato Institute and the Frontiers of Freedom Institute. The topic, purely and simply, will be fighting terrorism while preserving constitutional rights.

In today's context, who can be against anti-terrorism legislation except the terrorist? The answer, of course, is clear: any citizen who holds the Constitution sacred. It is wise to be against even beautiful sounding legislation if that legislation hurts the citizens; treats them as subjects, not citizens; and makes them answerable to unelected government officials.

Make no mistake about the meaning of this conference. Everyone in this room understands the need to identify and attempt to thwart future acts of terrorism. That, however, must be done within the letter and the spirit of the law and our Constitution. Otherwise, we risk accusing innocents of wrongdoing. The debate needs wisdom, not passion, and understanding, not bluster.

Thus far, every anti-terrorism measure suggested by our leaders tests the fine line between fighting terrorism and denying basic liberties. The majority of measures offered by well-meaning legislators in the year and a half the terrorism debate has been going on would do little or nothing to stop or deter terrorism. Not one legislator can point to a single provision of any of those bills that would have prevented the World Trade Center bombing, the Oklahoma City bombing, the Amtrak derailment in Arizona, or even the Unabomber. In fact, those measures cheerfully and without apology do more to crack down on average Americans than on terrorists.

What we have here is a knee-jerk reaction to a blow. The Oklahoma City bombing, the horrible incident that started the debate raging, was not a light blow. We are not here today to minimize the pain, the horror, and the violence and violation that the people of Oklahoma have sustained and endured. But this country has had a long, glorious, and, at times, brutal history. Through it all we have revered the Constitution. It is that document that has held and can continue to hold us together as a people. It is not a document that grants powers to the federal government, as some advocates of big government would have you believe. Rather, its purpose is specifically to limit the ability of government to infringe upon those inalienable rights with which we are endowed by our creator.

Government, which does not and did not grant us our rights, must not now seek to deny them by using fear as its justification.

We all support law enforcement. A civilized society must have it. But, as the Constitution stipulates, law enforcement must remain limited in how far it can intrude into any citizen's private life. And no protestations of good intentions in pursuit of security must be allowed to expand the limits of government power.

First of all, acts of violence are not necessarily terrorist acts. No matter how much legislation regulates them and how much technology is at law enforcement's command, no one can deter or stop a psychotic predator from creating or committing an act of violence.

Second, the Federal Bureau of Investigation has a horrible recent track record on its treatment of American citizens. It is not a stretch to suggest that in the past two months the FBI has destroyed one American's life. Twenty years from now many people will be able to recall the name of Richard Jewell. Much like Billy Dale in the White House travel office, Mr. Jewell has been persecuted by a federal authority seemingly untroubled by and certainly unapologetic about the consequences of its actions. Mr. Jewell's privacy rights were thrown to the wolves by the FBI, as were the rights of the 900-plus citizens whose files were handed over to the White House.

And now we are expected to trust the same FBI with enhanced wiretapping authority, a lower threshold of probable cause, and a promise of good faith in place of a court order. I think not.

No one can doubt that there will be terrorist acts in the future. Yet we cannot let fear of such attacks overwhelm us into ceding constitutional rights to any government, however benign its promises. Once ceded, they can never be restored except by revolution.

This debate is really about whether or not we will first surrender to the terrorists and then to an intrusive federal government. Government, which does not and did not grant us our rights, must not now seek to deny them by using fear as its justification. The president and members of Congress must take a deep breath of freedom's air and resist the heroic in favor of the rational.

In the 1950s a senator from Wisconsin investigated many U.S. citizens and judged their guilt on the basis of their associations and beliefs. What bothers me most about the anti-terrorism proposals drawn up thus far is the ambiguity about what constitutes criminal activity. You name it and the FBI can claim it is criminal. Similarly, Senator McCarthy was broad and ambiguous in his accusations of communist activity.

One last point before I conclude: I am concerned about the use of the military in domestic law enforcement activity. That is wrong. It ought to outrage Americans. It ought to outrage the military, and I believe it does. I have been told time and time again by military personnel that it is not their job to police Americans and that it sets a very dangerous precedent. Constitutionally, it is not the role of the military to work with federal, state, and local law authorities in law enforcement activities. We see from the Waco disaster what can happen when military operations collide with federal, state, and local law enforcement procedures.

The measures proposed last year and this year give federal law enforcement enormous reach into the private lives of citizens. Republicans once held the belief that local and state governments could police their communities better and that the federal role was to support those functions. Where is that philosophy right now? Since 1995 it has been the Republicans who have been the loudest supporters of much unconstitutional legislation. Vying with the president to appear tough on crime, they continually have abandoned their once adamantly held strict constructionist views.

At a time when Americans think we are moving to limit government and when the country fears an overly intrusive federal bureaucracy, anti-terrorism legislation runs rapidly down the street in the opposite direction. I challenge my former colleagues in the House and Senate not to go for the easy political victory and the 30-second news clip on Dan Rather. Do not cave in to pressures from advocates of big government and do not let emotions dictate your focus. Fight for personal freedom. It often seems as if Congress views the Constitution as an impediment to good government. I say to my former colleagues in Congress, please prove me wrong.

 

 David Kopel: When we think about what America should give up in order to improve security against terrorism, we need to take a very hardheaded and clear look at what we can gain and the price that we are supposed to pay. Let's take a look at the size of the problem in the first place.

There has never been a year in U.S. history in which there have been 200 deaths attributable to terrorism. So, let's start by saying that terrorism costs 200 lives per year. We will thereby avoid any risk of underestimating the problem.

I can think of two ways in which we could save more lives with changes in our society that are far less meaningful than the changes that are being proposed to reduce terrorism. First of all, we could outlaw ladders. Falls from ladders caused 317 deaths in the United States last year. A second step would be to outlaw bathtubs. Three hundred twelve people drowned in their bathtubs last year. Doing either of those things would save more lives than would implementing the proposed anti-terrorism measures. And neither would be as damaging to our civil liberties.

To put the situation in perspective, one should consider that the risk that any given American will be killed by a terrorist attack is about the same as the possibility that any random high school football player will one day be a starting quarterback in the Super Bowl. The odds aren't zero--two people are going to be starting quarterbacks in any Super Bowl--but they are very, very small.

What is the price that we may pay for trying to eliminate the very small risk of being killed by a terrorist? I think the best example for us in this regard is Great Britain, our mother country and the intellectual source of many of the great liberties that we enjoy in the United States.

In a little over two decades, Great Britain, once a magnificent edifice of liberty, has squandered many of its liberties. Right now it is a much less free country than it was two decades ago. That decline really started in 1974 when the Irish Republican Army bombed a pub frequented by soldiers in Birmingham. Within a few weeks the government introduced the Prevention of Terrorism Temporary Provisions Bill. That was the title: "temporary." It was supposed to be in effect for only one year. In fact, it has been renewed every year since then and is still in effect.

It allows a suspected terrorist to be searched without a warrant. It allows the government to label organizations as illegal, and it makes it illegal for an individual even to wear clothes indicating that he supports such an organization. It also makes it illegal for any words in support of those organizations to be broadcast on television or radio.

In Northern Ireland there is now no jury trial in political violence cases, and coerced confessions obtained by police beatings and other violent techniques are routinely admitted as evidence.

In Great Britain you no longer have a right to remain silent when you are accused of any crime. If you remain silent, your silence can and will be used against you in court. That provision was originally introduced solely as an anti-terrorism measure, but like so many other measures it quickly spread and infected the entire criminal justice system.

In addition, the government can do black-bag jobs. Its agents can break into somebody's house, do whatever they want, even steal property if they wish. And they can do all the wiretaps they want without judicial approval.

What has all of this led to? Great Britain has gone from having the best civil liberties record of all West European countries to having the worst, and it still have plenty of terrorism.

Your risk, as a British citizen, of being blown up by a bomb at a pub or anywhere else is no less now than it was 20 years ago. But your risk of being victimized by state terror, by official government violence and violation of your civil liberties, is much higher now than it was before. Of course, as is true of so many government programs, nothing succeeds like failure. The current loss of civil liberties is just the starting point, since every time there is a new incident the government says, "Well, we need more power. If only we had more power, then we would be safe. So give us some more."

We see, of course, the same cycle here in the United States. Every incident leads the Clinton administration to say, "Well, just give us more and more power." There is no stopping point, because you never get to the point of complete safety. Nor do you ever get to the point where the government's desire for power is satiated.

Benjamin Franklin once said that people who trade their fundamental liberty for a little temporary security deserve neither. The bargain we are being asked to make in terrorism legislation isn't even that good. The heinous anti-terrorism legislation that passed last April is one of the most repressive bills that has ever gone through the U.S. Congress. And in the end, it doesn't contain a single provision that would have prevented the Oklahoma City bombing, which, after all, was the impetus for the legislation in the first place.

In the book of Genesis, Esau sold his birthright for a mess of pottage. That was known as one of the worst deals ever made. But at least he got a meal out of it. In contrast, the anti-terrorism legislation that is being promoted today won't even give us a good lunch. We will trade our fundamental liberties, our civil liberties that have been won over many centuries, at a tremendous cost and for no gain in our real security.

  

Nadine Strossen: The question we are asked is, "Do anti-terrorism laws secure or threaten our civil liberties?" My answer is that not only do they threaten our civil liberties, they violate our civil liberties. Moreover, far from securing civil liberties, they don't even secure our safety. The so-called anti-terrorism measures that have been enacted or proposed are doubly flawed. They neither protect us from terrorism nor preserve our civil liberties. Quite the contrary.

I think what we are seeing is an understandable overreaction to a few terrible events. Understandably, people were outraged and wanted to do something. What is not understandable and what is not rationally justifiable is that the something that is offered up, as is always the case when there is an overreaction to this kind of tragedy, is a scapegoating of civil liberties. The danger, which we have seen recurrently throughout our history, was well captured in a 1995 dissent by Justice Sandra Day O'Connor, who can hardly be accused of being a flaming libertarian. She said, "It cannot be too often stated that our greatest threats to our Constitutional freedoms come in times of crisis." That is certainly illustrated by the bill that was passed in April.

The law was introduced under the name of the Omnibus Counterterrorism Act. The American Civil Liberties Union immediately issued a press release saying it would far more accurately be called the Ominous Counter Constitution Act because it violated such a wide range of our most precious liberties: free speech, free association, due process, privacy, and so forth. That law, as you all know, was enacted with most of the anti-liberties provisions still intact.

Bad as that was, we have seen more demands for still greater governmental authority to deal with terrorism that has occurred since then. After the TWA explosion and the Atlanta bombing, there was a call for more wiretapping authority. More recently, as a result of the report by the Gore Commission, the president is calling for, among other things, "profiling" measures.

To be able to use those profiles, the federal government must create a massive computerized database of information about everybody who is actually or potentially travelling by airplane--in other words, a computerized database of virtually everybody in this country. Our privacy is under siege.

And as for wiretapping, let me respond to some of the justifications that have been offered for that additional invasion of the privacy of innocent Americans. Wiretapping advocates say, "The people don't listen very long. They listen only long enough to determine who you are and that you are not, in fact, engaged in any crime." And that reminds me a lot of the point that is often made to me when I stand up for Fourth Amendment rights: "If you are not a criminal you don't have anything to hide. Why should you care?" We care because we value have our privacy, our personal lives. I don't like the fact that a government agent is listening in on my conversations, no matter how innocent those conversations are and no matter how briefly the agent may be listening.

One of the many reasons why wiretapping is objectionable is that we don't even know that it is going on. There is no requirement that the government notify you that your conversations are being wiretapped. I saw a cartoon recently that I think illustrates the dangers of the wiretapping that is already authorized. It shows an FBI agent sitting in front of all of his wiretapping equipment who says, "We're proposing a sweeping nationwide system of wiretapping. Sure some fuzzy-headed civil libertarians will object, but we'll do everything possible to respect your rights and privacy." As he is putting on the headphones he says, "Don't forget we are professionals that are trained to ferret out only those tidbits of information the authorities can use and also don't forget," and at this point, with his headphones on, he says, "your wife wants you to pick up milk on the way home." The information may not be damaging, but I think the intrusion certainly is.

Another big aspect of this law that has absolutely nothing to do with terrorism is how it cuts back on the rights of immigrants. What we are talking about in this law is subjecting people to summary or immediate deportation. People who arrive here or are suspected of arriving here without proper documentation, even if they are completely law-abiding, can be subject to summary deportation. To make matters worse, those deportation decisions can be made by Immigration and Naturalization Service employees without any administrative or judicial review. That is going to have its most devastating impact on legitimate refugees who were forced to flee their countries without valid travel documents. Immediately upon arrival, they are going to have to persuade an INS official that they have a legitimate fear of persecution on account of their political opinions, race, religion, or national origin. In other words, they will have to prove that they meet the standard for "refugee." They will no longer have a right to a hearing before an immigration judge or a federal court review. Federal courts are no longer the final arbiters of those claims, which are often life-or-death matters.

We have to look beyond the label of this legislation, which is anti-terrorism. What is actually being done is a severe violation of all of our rights. I dare say there is no one in this room who flies more often than I do. I have calculated that I fly almost 200,000 miles a year. There is nobody who is more concerned about safety in flying as well as other forms of safety than I am, but I believe that what is being offered up is not going to enhance our safety. It is simply going to undermine our liberty for purely political reasons.

This article originally appeared in the November/December 1996 edition of Cato Policy Report.