Recently, the Justice Department released legal memoranda, written in the aftermath of Sept. 11, 2001, that outlined contingency planning for further attacks on the United States. Civil libertarians are deliberately creating the misimpression that this, along with the Patriot Act and electronic surveillance of terrorist targets, was the product of a Republican administration chafing at the bit to take away civil liberties.
Nothing could be further from the truth. Many lawyers throughout the government, of which I was one, worked on what once had been unthinkable--Mumbai-style terrorist attacks against civilians on U.S. soil--under intense time pressures. Agree or not with its policies, the Bush administration succeeded in preventing another al-Qaeda attack, with any reduction in civil liberties far less than previous U.S. wars.
Certainly, history has to make anyone wary of increased police powers. Yet it is also true that U.S. law and politics have evolved since the days of the Alien and Sedition Acts or the Palmer raids. Abuses that occur today are more likely to be isolated and individual acts, mistakes, rather than wholesale deprivations of civil liberties. Our career government officials are keenly respectful of law and the Bill of Rights--notwithstanding the bad-cop stereotypes and exaggerated partisanship that stirs media excitement.
Critics would have us believe that the government is dragging us into an Orwellian security state. Legal academics, for example, have warned that the Patriot Act endangers civil liberties. What most of this criticism amounts to is the valid point that any increase in national security might potentially infringe on civil liberties.
The rhetoric intensified with the 2004 presidential campaign. Former Vice President Al Gore, calling for the Patriot Act's repeal, accused the Bush administration of using "fear as a political tool to consolidate its power and to escape any accountability for its use." Then-candidate Howard Dean denounced it as "morally wrong." The American Civil Liberties Union persuaded several city councils to pass symbolic resolutions refusing to obey the act and some librarians to file lawsuits against its expanded surveillance powers.
Yet, the Patriot Act itself was a grab bag of commonsense modifications, drafted primarily by career civil servants in the law enforcement and intelligence communities, to update our surveillance laws for a world of e-mail, cell phones, and texting.
It would be a grave mistake to believe that the Patriot Act and like measures represent a great leap forward in our abilities to stop terrorist attacks. We face a new enemy within our borders that is resourceful, adaptable, determined, dangerous, and highly skilled at escaping detection. Its attacks are the products of technologies, ideologies, and global dynamics entirely unknown to the world that existed after World War II and the Cold War.
Just as government can go too far in favor of security, it can also go too far in the other direction. Fear of sharing information between government agencies, for example, undoubtedly contributed to the Sept. 11 attacks.
After President Richard M. Nixon's use of the CIA and National Security Agency to harass his political enemies, Congress passed a law that was read to block almost all sharing of information between the CIA and the NSA, on the one hand, and the FBI on the other.
This "wall" prevented our intelligence and law enforcement agencies from sharing information on terrorism before 9/11. The CIA even had the identities of two of the hijackers who were in the United States, but could not share its find with the FBI. Insufficient attention to security prevented the government from "connecting the dots" to al-Qaeda, and perhaps stopping the 9/11 attacks.
The threat of an out-of-control executive seeking to harry its political enemies is not what looms before us. Legitimate political activities and exercises in speech by U.S. citizens have not been suppressed. There is no lack of lawyers to defend terrorism cases free. In the last two elections, voters have turned out the party in power from Congress and the presidency.
Civil libertarians often take the absolutist position that any wartime reduction of civil liberties will permanently diminish them in peacetime. Others say that panic will always lead government to go too far, or that majorities will always abuse power to oppress minorities.
U.S. history does not bear this out. Civil liberties throughout our history have expanded in peacetime and contracted during emergencies. During the Civil War, the two world wars, and the Cold War, Congress and the president restricted civil liberties, and courts deferred; during peacetime, civil liberties expanded.
Wars in the past led presidents to go far beyond anything the Bush administration did with regard to civil liberties. During the Civil War, President Abraham Lincoln suspended habeas corpus on his own authority, detained up to 14,000 U.S. civilians, and instituted military courts for their trial. FDR interned 100,000 loyal Japanese Americans during World War II.
Wars can lead to social and economic upheavals that end in expansions of individual freedom. The Union liberated the slaves and expanded individual rights against the states during Reconstruction. Civil liberties surged in the decades after World War II.
War no doubt expands executive power. But if we think executive power is an unalloyed negative, then we should reduce the administrative state, too. Oppression of minorities for self-interested gain can occur in wartime and out. Slavery and Jim Crow were the products of peace, not war.
So far, nothing like the infringements on civil liberties of past wars has occurred. Only three U.S. citizens have been detained by the military. Former President George W. Bush established military courts to try terrorists for war crimes, but no citizens were included. America has been solicitous of the Arab American community, repeatedly stating that the war is not against Arabs or Muslims, opposing racial profiling at airport searches, and prosecuting racially motivated assaults on Arab Americans.
Critics have exaggerated the threat to civil liberties today. This is not to say that constraints on the executive branch should not occur. The government's powers have been expanded. Privacy has been slightly reduced, though much more by the sheer march of communications technology than by the government.
The question is not whether some imaginary perfect world of civil liberties has been destroyed, because we do not live in that world. What we should ask of the Bush administration and its successor is whether they struck the right balance between security policies and civil liberties.
John Yoo is a visiting fellow at AEI.