an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My book Taking Liberties: The War on Terror and the Erosion of American Democracy (Oxford Univ. Press 2011) documents the costs of post-9/11 antiterrorism policies, focusing on the impact of these measures on ordinary Americans. Yes, I cover the Patriot Act and other surveillance provisions somewhat familiar from periodic news accounts over the past decade and some scholarly writing, but I also discuss the devastating war on American Muslim charities, economic blockades of American individuals and organizations (the “no-buy” list), the consequences of expanded “material support” laws, including the prosecution of an Iranian refugee who, after receiving asylum in the U.S., was prosecuted for supporting the same pro-democracy group the Iranian government had imprisoned her for supporting, etc. Because I have access to so many of the people involved, I also offer an inside account of the stories of, for example, the Connecticut librarians and New York Internet service provider who became “John Does” challenging the constitutionality of National Security Letters and their accompanying gag orders, among others. And as a Constitutional Law professor, I put the post-9/11 decade into a larger frame, talking about the decade’s challenges to our Constitution as well as the range of safety valves in that resilient document (like the role of the right to jury trial, access to the courts, and even federalism).
Putting these stories together into one big picture reveals disturbing patterns: the seemingly inevitable unreliability of decisions made behind closed doors, the distorting impact of secrecy, even in the courts, and the persistent inversion of democracy. My bottom line, which will not be a surprise to many of you, is that some of the measures we adopted in haste in the panicky days following 9/11 and have not adequately examined since are costing more in constitutional liberties, individual lives of ordinary Americans, and even the health of our democracy than most people realize, while, on the other side of the balance, some of these measures may not be all that effective or cost-effective, and some may be downright counterproductive. In writing this book, I hoped to get readers and media to consider my argument that we urgently need to pay attention to government powers that have remained as expansive and dangerous under Obama as under Bush. Some have. A colleague at another law school, for example, just told me that after reading my book he concluded that he had underestimated the threats to our Constitution from the Patriot Act, etc., and was becoming determined to spread the word.
But during my book tour I kept hearing the same complacent and dismissive questions from quite a few interviewers and members of the public:
• Why would we consider changing any of our responses to terrorism since what we’ve been doing is obviously effective – we haven’t experienced another attack since 9/11?
• If President Obama has not changed much of the Bush antiterrorism strategy despite what he said as a candidate, doesn’t that mean that when he found out what was happening behind the curtain, he learned that we are doing the right things?
• How can we know enough to evaluate what works and what doesn’t, given the need for secrecy? Don’t we just have to trust the President to be the “decider?”
• If there was anything wrong with any of our antiterrorism measures, wouldn’t the courts or Congress have done something?
• Why should I worry about antiterrorism measures if I’m not doing anything wrong and I’m not an Arab or Muslim?
• If, as you say, all three branches of the federal government are acting in lockstep to dismiss legitimate concerns and to maintain all the dragnets, what could we as individuals do anyway?
I do offer my own answers to all of these questions in my book but, not surprisingly, people who are invested in the idea that we don’t actually have a problem don’t want to read the book or hear otherwise. And many of the major media gatekeepers therefore don’t want to run any more stories on this subject, explaining that they’ve covered the Patriot Act enough since 9/11 and so there’s nothing more to say.
So here’s where I think we are: our elected officials want all the dragnets because they trust themselves to wield vast discretionary powers and they are not hearing protests from their constituents; the courts for the most part have sidelined themselves with procedural excuses (state secrets privilege, Iqbal pleading requirements, immunity and standing doctrines, etc.). But if I’m right that the powers we’ve unleashed have already done harm and are capable of doing a great deal more harm, perhaps in the hands of a future President (and although I know not everyone agrees, I do think I’m right about that), we need to have the national conversation that most of the public doesn’t want to have and that politicians and the media can therefore safely avoid.
I argue that change can only come from us (we, the people) if more people inform themselves and ask more questions to challenge the convenient, fear-inflected assumptions I’ve listed above. But frankly, given the current political climate, it is hard to be optimistic about the prospects for change.
As legal scholars, what can we do to help rationality fight back?
Susan N. Herman is Centennial Professor of Law at Brooklyn Law School and President of the American Civil Liberties Union. You can reach her by e-mail at susan.herman at brooklaw.edu Posted
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