Eric Posner, co-author with Adrian Vermeule, of Terror in the Balance: Security, Liberty, and the Courts is the Kirkland & Ellis Professor of Law at the University of Chicago. In his book he looks at the cycle of lawmaking during emergencies and argues that when governments strive to increase national security they should be given wide latitude to adjust policy and liberties in times of emergency and war. Below Posner weighs in on H.R. 1, “Implementing the 9/11 Commission Recommendations Act of 2007.”
Now that the Democratic Party has taken control of Congress, will it cut back on President Bush’s aggressive war on terror strategy, and restore Americans’ civil liberties? The answer appears to be “No.”
The Democratic Party’s “6-Point Plan” for 2006 lists the following items: Honest Leadership & Open Government; Real Security; Energy Independence; Economic Prosperity & Educational Excellence; A Healthcare System that Works for Everyone; and Retirement Security. Under Real Security, one finds:
Democrats are unwavering in our commitment to keep our nation safe. For Democrats, homeland security begins with hometown security. That’s why we led the fight to create the Department of Homeland Security and continue to fight to ensure that our ports, nuclear and chemical plants, and other sensitive facilities are secured against attack and support increased funding for our first responders and programs like the COPS program so we keep our communities safe. We want to close the remaining gaps in our security by enacting the 9/11 Commission recommendations.
There is no reference to civil liberties here and that does not seem to be an oversight. The House has just passed H.R. 1, a bill entitled “Implementing the 9/11 Commission Recommendations Act of 2007.” This lengthy bill does all sorts of things. Title I reallocates homeland security funds to higher-risk areas and institutions. Title II provides for the improvement of communications among first responders. Title IV increases inspection of cargo containers, and Title V addresses aviation security. Other titles address information sharing, centralization of resources, and similar logistical and administrative issues. Only Title VIII specifically addresses civil liberties (sections in other titles do provide some limited civil liberties-related reporting requirements): it strengthens a civil liberties oversight board in the executive branch and enhances the powers of officers in agencies who are supposed to advise and report on civil liberties matters.
These are baby steps, unlikely to have any effect on civil liberties. Recall the concerns of civil libertarians. That the Patriot Act and related laws permit intrusive and unjustified searches. That the Authorization for Use of Military Force issued after 9/11 permits the executive branch to detain indefinitely, and without charges, anyone whom it deems an enemy combatant, anywhere in the world, including people captured on American soil. That the Military Commissions Act permits kangaroo trials of enemy combatants suspected of war crimes and strips civilian courts of their power of review. That immigration and law enforcement authorities profile, harass, and unjustifiably detain noncitizens from Muslim countries. That, on the basis of dubious or nonexistent authority, the NSA spies on Americans without obtaining the warrants required by law. That, on the basis of dubious or nonexistent authority, and in violation of international law, the Bush administration mistreats suspected terrorists, ships them to foreign countries where they will be tortured, maintains secret prisons, violates bank secrecy laws and norms, and so forth. That vague anti-terrorism and material support statutes are being used against legitimate charities, and innocent people, all Muslims. None of these concerns are addressed in H.R. 1.
Various Democrats have objected to these measures in the past, of course, and some of them might press for bills addressing them in the future. Perhaps there will be hearings as well. But what seems clear is that support for civil libertarian views among Democrats is not strong enough to put them at the top of the agenda. One can go farther. Even if future bills tinker with more of the Bush administration’s war-on-terror strategy on the margins, as H.R. 1 does, the Bush administration’s strategy appears to have, in general, bipartisan support, and so probably the overall support of the American public. The rebalancing of civil liberties and security after 9/11 can no longer be considered radical, if it ever was. It is the civil libertarian view that is outside the mainstream; it is, in the context of 9/11, an increasingly fringe view, dominant only in academia and the media.