After the devastating attacks of September 11, 2001, the Congress and the Bush Administration were forced to reassess the roles of law enforcement, the intelligence community and the military in protecting our country from the threat of future terrorist acts. The USA PATRIOT Act and other new laws were hastily enacted and administrative measures put in place, all in the name of protecting the United States from terrorism.
Today there is no real disagreement on what must be done to protect the homeland: terrorists must be identified and apprehended, critical infrastructure protected, ports of entry secured, first responders supported. Too frequently, however, the Administration has lost focus on these key priorities and instead exploited the emergency for purposes that bear little connection to the fight against terrorism. The result has been abuses of civil liberties on a scale unprecedented since the era of COINTELPRO and Watergate.
These infringements of civil liberties have not enhanced our national security; indeed, in many ways, they have diminished it:
In detaining large numbers of individuals with no connection to terrorism, the administration has diverted money and people from the more difficult and important task of discovering actual terrorists.
In targeting law-abiding Muslim and Arab men, the administration has engendered a culture of fear and suspicion towards government, especially in immigrant communities – whose cooperation in the war on terror is vital.
In disregarding world opinion and international law we have made other nations less likely to cooperate in what needs to be a truly global response.
The Center for American Progress released a report this past week titled "Strengthening America by Defending Our Liberties." This report combines a detailed, factual critique of the Administration’s deep disregard for Constitutional protections, and offers positive and progressive legal, regulatory and legislative policies.
With the passage of the PATRIOT Act, Congress gave the Justice Department broad powers that weaken constitutional protections against illegal searches and seizures – even in cases not related to terrorism – and transferred vast powers from the judiciary to the Attorney General’s office. These powers are exercised without accountability; the Justice Department never has to reveal how often they are used.
Our report recommends amending the PATRIOT Act to prevent unnecessary intrusions into the privacy of the law-abiding, and reaffirming the role of the independent federal judiciary. For example, we want the law to deny the government expedited access to library or medical records unless a judge determines that there is probable cause to believe that the person to whom the records pertain is a spy or terrorist. We want to prohibit so-called "sneak-and-peak" searches of personal property unless a judge determined that the disclosure of the search would endanger the safety of another person, result in the destruction of evidence or cause the suspect to flee prosecution. We want to require the Justice Department to disclose, in detail, its use of the PATRIOT Act, to the Congress and the American people.
Another area the report addresses is the ill-treatment of American immigrants. Immediately after September 11, the Justice Department rounded up 762 Arab and Muslim men on pre-textual immigration violations. They were labeled "of high interest" and placed under 23-hour lockdown. No prisoner was released until "cleared by the FBI, a process that took on average 80 days – and as long as 240 days. In the end, no detainee was charged with any terrorist crime, not one. Despite criticism from his own Inspector General, Attorney General Ashcroft said he makes "no apologies."
These detentions were only a small part of a broad assault on the rights and dignity of Arab and Muslim males living in the United States. These men have also been subject to secret arrests, detention without charges and closed hearings. Men who have come to the U.S. from twenty predominately Arab and Muslim countries must now be fingerprinted, photographed and interrogated. The only impartial arbiter standing between a free life and arrest or persecution in an immigrant’s homeland, the Board of Immigration Appeals, has effectively been gutted by administrative fiat.
Our report recommends requiring that a judge see detained immigrants within 48-hours; making most immigration hearings public; ending the practice of targeting law-abiding Arab and Muslim men for fingerprinting and interrogation; and creating an immigration court outside of the Justice Department. None of these reforms would make America any less secure. All of them would go a long way in repairing the relationship between immigrant communities and the federal government.
Richard A. Clarke served for 11 years as a counter terrorism advisor to Presidents George H. W. Bush, Bill Clinton and George W. Bush. Departing office last February he remarked: "I have never seen one reason to infringe on privacy or civil liberties." It has been said that September 11 changed everything. But as horrifying as the events of those day were, nothing that occurred changed our Constitution, our values or our commitment to the rule of law. Only by reaffirming our dedication to these principles can we both defeat the terrorist threat and protect the rights we as Americans cherish.
John Podesta is the President and Chief Executive Officer of the Center for American Progress and is a former chief of staff to President Clinton.