September 11th: your rights and the nation’s security

by Jane E. Kirtley

Depending on whom you talk to, either everything changed on September 11, 2001, or nothing changed.

Most Americans would like to think that the core values that are central to our society — the vision, the concepts, the ideals that make us what we are — emerged stronger than ever out of the rubble of the World Trade Center towers. Some of the most important of those, at least to me, would include the right to find out what our government is up to and to express ourselves freely.

But the reality is that, as has so often been the case in times of crisis, the initial, knee-jerk reaction of many of those in government has been to jettison those fundamental rights in the name of achieving greater security. And for the most part, the public has been indifferent, or even complicit.

The reason for this attitude can probably be attributed to the fact that most Americans had little or no prior personal experience with terrorist attacks before September 11. They bought the argument that it was the openness of our society that made us vulnerable. And in panic and desperation, they instinctively demanded that the government take steps to make sure nothing like that ever happened again, no matter what the cost.

And so, with little discussion and less dissension, Congress passed the USA PATRIOT Act just a few weeks after the attacks. The law is the embodiment of the FBI’s ultimate wish list, granting sweeping new authority to the law enforcement community to monitor our telephone conversations and intercept our e-mail communications.

People who should know better have said that this kind of surveillance is unqualifiedly a good thing. It will protect us from the “bad guys.” And, besides, if you aren’t doing anything illegal, why should it bother you if the government is keeping tabs on what you say and what Web sites you visit?

There are many flaws in that reasoning, but let’s mention just two. First of all, law enforcement officials themselves would admit that electronic surveillance is only one imperfect method of trying to track down terrorists, and that, inevitably, innocent people who have nothing to do with illegal activities will also be caught up in this type of electronic sweep. And second, only those who have never experienced life in a totalitarian state — or have never bothered to read the history of the FBI during the J. Edgar Hoover years — would be confident that their “innocent” activities could never be misconstrued as suspicious, or worse. If you know you are subject to government surveillance, it will change the way you act, speak and think. I, for one, am not prepared to abandon the Bill of Rights in return for vague promises that doing so will keep me safe.

Even if you are fortunate enough not to be the target of an investigation yourself, spare a thought for those who are. Perhaps they are people who don’t look much like you. Perhaps they speak a different language. Perhaps they aren’t even American citizens. Who cares if a few hundred of them are kept in secret custody by the government?

Fortunately, some federal judges do. In early August, Gladys Kessler, a federal district judge in Washington, D.C., ordered the Justice Department to disclose the names of individuals detained since September 11, despite the government’s insistence that doing so might compromise national security. And a few weeks later, a U.S. Court of Appeals panel ruled that deportation hearings for aliens, even the so-called “special interest” cases involving individuals suspected of having some kind of terrorist ties, must be open to the press and the public. “Democracies die behind closed doors,” Circuit Judge Damon J. Keith reminded us.

But secret justice is only one aspect of the new, post- 9/11, regime. The executive branch has seized on national security concerns as a pretext to revamp the Justice Department’s policy governing responses to requests under the Freedom of Information Act. A memorandum issued by Attorney General John Ashcroft in October advised government bureaucrats that the Justice Department would defend their decisions to withhold records from disclosure as long as there was some “sound legal basis” for doing so. This is a major shift from the articulated policy of the previous administration. At least on paper, the Clinton Justice Department recognized the presumption that government records should be open to public scrutiny, and directed agencies to disclose material, even if it could legally be withheld under an exemption to the FOIA, unless some harm would result.

Sadly, in the wake of September 11, it seems that just about any kind of information could be used by someone for evil purposes: the location of water reservoirs, gas pipelines, chemical plants. As a result, many federal agencies quietly removed this kind of data from their Web sites, even though the same material might be readily obtainable from other sources. And most Americans, if they paid any attention at all, cheered them on. After all, why make it easier for a terrorist to attack us? Who needs all that information, anyway?

The short answer is: we do. Democracy doesn’t exist in a vacuum, and the Constitution isn’t a selfexecuting document. Even the best government can become lazy or corrupt if it isn’t held accountable. The confidence that so many citizens claim to have in their elected officials is predicated on openness. The public has the responsibility to monitor the government. We abandon that responsibility at our peril. A time of national crisis is certainly not the occasion to do so.

What kind of horrific new disaster will it take, I wonder, to make the public realize that secrecy does not equal security? Or that rights, once given up, are very hard to win back again?

Jane E. Kirtley is the Silha Professor of Media Ethics and Law, and director of the Silha Center for the Study of Media Ethics and Law, at the School of Journalism and Mass Communication, University of Minnesota.