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Civil Liberties in Wartime

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from: Eugene Volokh
to: Stewart Baker

Posted Tuesday, Sept. 18, 2001, at 3:00 AM ET

Dear Stewart,

I confess I also enter into this discussion with misgivings. I've long bristled when people have talked about civil liberty, which is to say freedom from government oppression, as if it were the most important thing in life. And, yes, it can seem that way—when we are physically safe. But when our lives are in danger, we realize that we'd like to have both freedom from government oppression and freedom from oppression by others. Once we see that, it's pretty obvious that some trade-offs might be needed. And no one has a magic formula for how to make these trade-offs.

So not having any real answer to any really tough questions, let me just offer a few general thoughts:

1. This Isn't About "Civil Liberties in Wartime." The phrase suggests that we're somehow in a temporary Wartime that calls for temporary measures, which will vanish when we return to Peacetime. Well, Peacetime isn't going to happen.

In past wars, we could know when the war was over and peacetime rules could return. But say we kill Bin Laden; overthrow the Taliban, Saddam, and Qaddafi (just to pick some likely suspects); and blow up a bunch of terrorist training camps. Will this be the end of the war? Not by a long shot. There'll always be terrorists. There'll always be the risk of thousands of Americans being killed. We won't even know for sure when the risk has greatly diminished; we'd be fools to ever think it's been eliminated.

So the measures we adopt today—constitutional rules, statutes, and perhaps even media ethics principles—won't be temporary. They won't go away. This doesn't mean these measures are wrong; they may be good permanent measures to have. But let's not fool ourselves that we can have them just for a few months and then return to business as usual. This is going to be business as usual.

2. General Propositions Do Not Decide Concrete Cases. Justice Holmes said this a century ago, and he was right. Platitudes about how even "at a time of crisis … our freedoms should not be limited" or "it's pretty obvious that some trade-offs might be needed" (to quote myself) are at best tentative presumptions. They tell us very little about what to do about any particular proposal.

We all the time limit some freedoms in order to get some security—and we have to. Consider the constitutionally recognized power of the police to search even your home, if they have probable cause and a warrant. Consider airport X-ray searches. Consider the government's ability to arrest and detain alleged dangerous criminals, if probable cause is present, even before they are tried and convicted. Should we allow still more searches? More detentions? More speech restrictions? Fewer?

These questions can't be answered in the abstract. There must be a specific proposal on the table. We need to know what we're being asked to give up and what we're supposed to get in exchange. We need to think about whether the proposal will in fact make us safer. It's not that we must be pragmatists rather than idealists—it's that in a world where no ideal is absolute (certainly not the Fourth Amendment, for instance, which only bars unreasonable searches and seizures), we can't avoid this kind of pragmatic, concrete thinking.

3. Unintended Consequences. Finally, we have to remember an obvious but too easily forgotten point: Good intentions don't equal good effects. Disarming the public is intended to decrease armed violence; but there's good reason to think that this doesn't work. Arming airplane passengers, as some now suggest, is intended to facilitate armed resistance to terrorists; but there's good reason to think that this won't work, either.

Here is where I get to tie in to your excellent opening message, Stewart, which is probably 90 percent correct or perhaps even 100 percent. I agree entirely that newspapers' right to publish something doesn't necessarily mean that they should publish it. (By the way, as to rights, let me stress that it's perfectly constitutional to punish government officials for leaking secret material, and that reporters have no categorical First Amendment right to conceal the leaks' source.) My one concern, though—and it really is just a concern since I cannot claim to be an expert on the concrete facts (see above) about national security, the intelligence apparatus, and press reporting—is that press silence about intelligence matters may sometimes actually backfire.

Intelligence agencies, vital as they are to our survival, are subject to all the flaws of human institutions. They may err; and it's hard for the public to decide whether they've erred enough to need substantial reform unless the public is told the underlying facts. (For instance, did the intelligence agencies fail in this very situation, and, if so, what should we do to prevent such failures in the future?)

Intelligence agencies may become trapped by bureaucratic ossification and internal conventional wisdom, conditions that are exacerbated when no one outside the agencies can provide an alternative perspective. And there's also the inevitable temptation in policy debates to say, for the best of reasons, "Look, I have access to all this secret information that proves I'm right, so you need to trust me"—even if on close examination the secret information really wouldn't support the speaker's position. Voluntary, well-intentioned press silence about the actions of well-intentioned intelligence agencies may thus sometimes lead to worse intelligent-gathering capability rather than better.

I can't say this for certain; you spent years at the NSA and I didn't. I'm an expert on constitutional law, not on intelligence policy. I have no doubt that in many situations, perhaps most, press silence is the right answer. And perhaps, to anticipate one response, secrecy is so important to intelligence-gathering that the checks and balances must be provided solely by confidential congressional oversight committees—not by the press, the public, and the policy experts among the public. My goal here is just to raise a possible concern, not to resolve it.

So I hope that the press takes your advice very much to heart. Certainly they should think many times before publishing anything that might help terrorists. But at the same time, the question, "Who will guard the guardians?" (a question one might also ask about the press, but that I ask here about the intelligence community) remains. And we need to guard not just against "our leaders suddenly embracing authoritarianism," but against much more mundane failings as well—failings that unfortunately tend to thrive more in the absence of public scrutiny.

Eugene

dialogues
entries
123456
from: Eugene Volokh
to: Stewart Baker

Posted Tuesday, Sept. 18, 2001, at 3:00 AM 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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