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Civil Liberties in Wartime

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123456
from: Eugene Volokh
to: Stewart Baker

Posted Thursday, Sept. 20, 2001, at 9:00 PM ET

Stewart Baker is head of the technology practice at Steptoe & Johnson, a former general counsel of the National Security Agency, and co-author of a book titled The Limits of Trust: Cryptography, Governments, and Electronic Commerce. Eugene Volokh teaches constitutional law at UCLA School of Law and is the author of a textbook on the First Amendment and many law review articles on rights questions. This week they discuss specific security technologies that the U.S. government might adopt in the wake of recent terrorist attacks, and their effect on civil liberties.

Dear Stewart:

I agree with you that these disputes are often not so much about privacy as about the risk of abuse. For instance, say someone proposes installing video cameras in many public places, with face recognition software to catch people suspected both of terrorism and of other crimes. The danger wouldn't be loss of privacy; when you're walking on the street, the shape of your face is hardly "private."

Rather, the danger—whether or not it's serious enough to justify rejecting the proposal—is that this could make it too easy for the government to track its political adversaries as well as terrorists or street criminals. The same goes (in part) for Carnivore and roving wiretaps: Properly run they might intrude on privacy only in constitutionally permissible ways— if we can trust the government to properly run them.

So a few thoughts about trust:

1. As we agree, we can only trust government if there are control mechanisms. "If men were angels," Hamilton or Madison (it's unclear which) wrote in 1787, "no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." Nothing new under the sun.

2. Control mechanisms are particularly weak when there's no openness. (Hence, for instance, our virtually unyielding tradition of public trials.) This is especially so when the controls are entirely within one government agency, or within the executive branch, but it's even true if they're shared with Congress.

I agree with you about the value of "the audit and logging functions of modern computers." But computers can't punish violators—it takes a human to do the audit and read the logs. Sometimes government officials will encourage such auditing by subordinates, even when the results may be embarrassing to the agency and thus indirectly to the higher-ups. But not always.

3. Openness diminishes in wartime, as you yourself urged in your first message. And of course it must. But as openness diminishes, it becomes much harder for us to trust that the government is following the law. When more and more investigations are—for good reasons—classified, when leaks start being even more harshly repressed, it's reasonable to expect that some government officials will sweep mistakes under the rug.

They might even rationalize this (maybe even correctly) by saying that trying to punish the mistake might itself jeopardize the investigation: For instance, if an agent is to be prosecuted, as you suggested, for the felony of unauthorized wiretapping, there'll be a public trial, where facts about the underlying investigation might emerge. "Surely it would be better for the war effort to let this slide," a decent government official might say, perhaps without even consciously realizing that it might also be better for his career.

4. At the same time, pressures that might cause abuses increase in wartime. There's a war on! No time for technicalities and legalisms. American boys are dying in Afghanistan. (They will be.) Very understandable, and often correct, sentiments—but we should anticipate that they'll lead even well-intentioned officials to bend the law, or break it. It's no accident that the Nixon administration's abuses happened when the country was at war.

When one is beleaguered by foes abroad and (if the war becomes unpopular) opponents at home, it's easy to cut corners. It's also easy even for decent, well-meaning officials to merge in their minds the nation's interests with the administration's and with their own. "If this story comes out, it will embarrass us, and will thus play into the hands of the enemy. Better for America if we keep it quiet."

Perfectly understandable, perhaps even factually sound, thinking. And yet it seems likely to dramatically undermine any internal control mechanisms aimed at catching wrongdoing. As Maverick said (a long way from Madison, I know), "I trust my fellow man. I trust him to be exactly what he is." Human beings—in government or out—can be trusted to be, well, not completely trustworthy.

5. The risk of abuse isn't limited to matters directly linked to the war effort. OK, some may say, so there'll be some unauthorized wiretaps of people suspected of bombing and hijacking—that's unfortunate, but what's the big deal? A few abuses that probably won't touch your or my rights are a small price to pay for defending America. And I sympathize with that view: The inevitable risk of abuse must not paralyze us.

But this isn't going to be limited to suspected bombers. Already the government is (wisely) considering trying to track those who financially assist terrorists; financial institutions will find their records (which may include your and my records) being investigated. There will be a peace movement, and there might be reason to suspect that our enemies will try to influence it; members of the movement might find themselves being investigated. Someone may find financial connections between certain drug smugglers and certain dangerous foreign armed groups—and the War on Drugs might be intensified in the name of the War on Terrorism.

The government should be able to engage in all these investigations, if the proper legal standards are met. Nonetheless, we can expect some illegalities in all these areas and more, especially if the control mechanisms are just within the government. And, as we agreed on a few days ago, this won't be a temporary condition. Any new powers the government gets, it will keep, because terrorism will be a menace indefinitely.

Wartime—even the more or less permanent war on terrorism that we're likely facing (much like the Israelis have for decades)—requires us to trust our leaders. It requires them to keep secrets. But at the same time secrecy and wartime pressures make trusting the government harder than ever.

Since I've strayed so far from the concreteness on which I insisted in my first post, let me stray a bit further, to two extracts from poems by Kipling (a writer of underappreciated complexity). One, the libertarian, is from The Old Issue; "the King" below seems to refer to despotic rule generally, not to monarchy as such:

Here is naught unproven—here is naught to learn.
It is written what shall fall if the King return.

He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom's name …

He shall peep and mutter; and the night shall bring
Watchers 'neath our window, lest we mock the King—

Hate and all division; hosts of hurrying spies;
Money poured in secret, carrion breeding flies …

Long-forgotten bondage, dwarfing heart and brain—
All our fathers died to loose he shall bind again.

The communitarian response is from Law of the Jungle:

The strength of the Pack is the Wolf, and
the strength of the Wolf is the Pack.

Which is right? And if both are, what then?

Eugene

dialogues
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123456
from: Eugene Volokh
to: Stewart Baker

Posted Thursday, Sept. 20, 2001, at 9:00 PM ET
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Stewart Baker heads the technology law practice at Steptoe & Johnson in Washington, D.C. From 1992 to 1994, he was general counsel of the National Security Agency. Eugene Volokh teaches constitutional law at UCLA School of Law and runs the Volokh Conspiracy Weblog.
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Reader Comments From The Fray:


A question for Mr Baker: Is there any difference (either in current procedures or in the legislation passed by the Senate the other day) in how the government may implement wiretaps and other monitoring of foreign nationals, as opposed to American citizens? If there isn't, shouldn't there be?

Citizenship by itself confers no special virtue, but the evidence I've seen suggests that the terrorists involved in last Tuesday's murders were all foreign nationals. Indeed, they were foreign nationals from a very small group of countries. Does it not make more sense to restrict greatly the civil liberties of a small number of guests in this country than it does to limit generally the liberties of everyone?

--Joseph Britt

(To reply, click here.)


 The biggest question is this: is the freedom for safety trade even a real one? Before we discuss the value of buying safety with freedom, shouldn't we at least have some assurance that we're getting what we pay for? But historically, I can't find many examples (Lincoln's suspension of habeas corpus is the only possible one I can think of, and it's a maybe) where these sorts of legislative changes have done any real good. Here are some examples of things that clearly haven't:

--Outlawing the teaching of German during World War I;
--The crackdown on Socialists during World War I;
--The Palmer Raids;
--Interning Japanese Americans in World War II;
--Airport Security, at least pre-9/11 (if it can't stop even one of four simultaneous hijackings, it pretty obviously wasn't doing much for us);
--The 1996 "Antiterrorism" bill: ditto;
--Widespread security cameras in Britain -- haven't caught a terrorist yet, but they're hell on traffic violators;
--France's ban on encryption--still bombings.

Now they want things like a national ID card. The idea is that--even though the federal government let these guys in despite their presence on watch lists, even though it issued some of them pilots' licenses, even though they got air tickets…that despite all this, the same government will be sufficiently vigilant not to issue a national ID to dangerous people. I don't believe it.

The truth is, no widely-dispersed security measure is much use against people with skills and bad intent. Security is spread thin, and nearly every case any particular person deals with will be a false alarm, pretty much guaranteeing complacency. It's too easy for attackers to attain "local superiority" in force or stealth and bypass widespread security. You just can't maintain impenetrable security everywhere, all the time...

It is an axiom of warfare that he who defends everything, defends nothing…You can try to protect the most important and vulnerable places, figuring that you'll stop some but not all attacks. For the rest, you have to go to the source--incidentally keeping the terrorists off balance and disrupting their planning, training, etc. By doing that you prevent far more calamities than even the most extensive security. And you do it without asking Americans to give up their freedom. And without making yourself look silly and scared (thus granting the terrorists one of their goals) by doing dumb, intrusive stuff like banning nail clippers.

--A.G.Android

(To reply, click here.)

 (9/17)

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