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No. 443

June 26, 2002

Breaking the Vicious Cycle

Preserving Our Liberties While Fighting Terrorism

by Timothy Lynch

Executive Summary

When terrorists perpetrate atrocities against innocent American civilians, the public response is initially one of shock, which then quickly turns into anger. It is also common for people to experience a deep sense of anxiety in the aftermath of such attacks--especially as they hear poignant stories about fellow citizens who were so suddenly and unexpectedly killed. Such stories are a harsh reminder of one's own mortality and vulnerability.

Government officials typically respond to terrorist attacks by proposing and enacting "antiterrorism" legislation. To assuage the widespread anxiety of the populace, policymakers make the dubious claim that they can prevent terrorism by curtailing the privacy and civil liberties of the people. Because everyone wants to be safe and secure, such legislation is usually very popular and passes the legislative chambers of

Congress with lopsided majorities. As the president signs the antiterrorism bill into effect, too many people indulge in the assumption that they are now safe, since the police, with their newly acquired powers, will somehow be able to foil the terrorists before they can kill again. The plain truth, however, is that it is only a matter of time before the next attack.

This cycle of terrorist attack followed by government curtailment of civil liberties must be broken--or our society will eventually lose the key attribute that has made it great: freedom. The American people can accept the reality that the president and Congress are simply not capable of preventing terrorist attacks from occurring. Policymakers should stop pretending otherwise and focus their attention on combating terrorism within the framework of a free society.

_____________________________________________________________________________________________________

Timothy Lynch is director of the Cato Institute's Project on Criminal Justice.

Too many of our policymakers

seem to believe that the way to deal with terror-

ism is to pass more laws, spend more money, and

sacrifice more civil liberties.

Introduction

When thousands of innocent civilians were murdered in a terrorist attack on September 11, 2001, President Bush declared, "Freedom has been attacked, but freedom will be defended."1 Within a matter of weeks, American military forces were hunting down the culprits by attacking terrorist base camps in Afghanistan. That decisive military action was a perfectly appropriate move to defend the lives, liberties, and property of the American people.

Here at home, however, President Bush and Attorney General John Ashcroft have done a poor job of "defending freedom." The Bush administration has supported measures that are antithetical to freedom, such as secretive subpoenas, secretive arrests, secretive trials, and secretive deportations. A vigorous investigation into the worst attack on American civilians was necessary, but the administration, with the acquiescence of Congress, has disregarded vital constitutional principles.

If one examines the history of the federal government's responses to terrorism, a disturbing pattern emerges. The federal government responds to terrorist attacks on U.S. soil--such as the Oklahoma City bombing in 1995--by rushing to restrict civil liberties. Rarely, if ever, do lawmakers examine whether prior civil liberties restrictions were enacted hastily--or even whether such restrictions have proven to be effective law enforcement measures. Rarely, if ever, do lawmakers fully investigate whether government employees were partly responsible for the tragedy because of their negligence or incompetence. Instead, without pausing for reflection, lawmakers have rushed to confer yet more power to government.

All indications are that the United States remains trapped in that same destructive cycle post?September 11. Too many of our policymakers seem to believe that the way to deal with terrorism is to pass more laws, spend more money, and sacrifice more civil liberties. But genuine leadership surely includes ensuring accountability in govern-

ment and a willingness to reverse longstanding, but wrongheaded, government policies. Unfortunately, such matters have been brushed aside in the wake of the September 11 attack. Congress made a dreadful mistake, for example, by rushing to enact a sweeping "antiterrorism" law before reaching a determination as to whether law enforcement and intelligence officials were negligent or incompetent in failing to prevent the calamity. Since the American homeland will remain vulnerable to terrorist attack for the foreseeable future, policymakers must come to grips with their responsibility to defend the people from foreign aggressors while maintaining a free society.

This paper will discuss the limited policy options that are available to the president and Congress with respect to the terrorism problem. The paper will conclude that the best defense against terrorism, as Secretary of Defense Donald Rumsfeld has noted, is a good offense.2 That means sending our military to the terrorist base camps and killing the terrorist leadership. Here at home, it means resisting the establishment of a surveillance state.

The Cycle: Terrorist Attack and "Antiterrorism" Legislation

Recent experience has shown that policymakers in America invariably respond to terrorist incidents by proposing and enacting "antiterrorism" legislation. Even though every sort of harmful behavior--murder, attempted murder, bodily injury, destruction of property--is already prohibited by law and carries severe criminal penalties, antiterrorism proposals have proven to be very alluring. After all, the very fact that an atrocity has occurred is irrefutable proof that the police were not able to thwart the attack. Thus, policymakers reason that they must take action and "alter the balance between liberty and security." With their newly acquired "tools,"

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the argument runs, the police will be able to stop the terrorists before they can kill again. This cycle of terrorist attack followed by consideration of antiterrorism legislation has repeated itself many times in recent years.

The first major terrorist attack on American soil occurred on February 26, 1993. Islamic fundamentalists placed a car bomb in the parking garage beneath the World Trade Center. The explosion killed six people and injured more than one thousand individuals. A few weeks later, then New York congressman Charles Schumer (D-N.Y.) introduced the Terrorism Prevention and Protection Act of 1993.3 Among other things, the proposed bill would have federalized all violent offenses, allowed the use of secret evidence in deportation proceedings, and increased the surveillance powers of the Federal Bureau of Investigation.

On April 19, 1995, domestic terrorists conspired to detonate a truck bomb outside of the federal office building in Oklahoma City. The explosion killed 168 people and injured hundreds more. President Bill Clinton responded to the attack by urging Congress to pass antiterrorism legislation.4 Within weeks, Sen. Robert Dole (R-Kans.) and Senator Orrin Hatch (R-Utah) introduced the Comprehensive Terrorism Prevention Act of 1995.5 Among other things, the bill would spend $1 billion on various antiterrorism efforts, place restrictions on the "Great Writ" of habeas corpus, and ban the sale of goods and services to countries that the president determines are not cooperating fully with U.S. terrorism efforts.6 When President Clinton signed a version of that bill into law, he proclaimed that "our law enforcement officials will [now] have tough new tools to stop terrorists before they strike."7

A few months later, the FBI's top terrorism official, Robert Blitzer, briefed senators about security precautions for the Summer Olympics in Atlanta, which was only a few weeks away. Blitzer told a Senate committee that the FBI had made "security for the upcoming Olympics a priority of the highest order."8 Blitzer observed that "there is hardly a government agency in public safety law

enforcement that is not somehow involved in ensuring that the 1996 Olympic Games are safe and secure. . . . The FBI, DEA, ATF, U.S. Secret Service, U.S. Customs Service, and the U.S. Coast Guard are handling federal law enforcement responsibilities."9 On July 27, 1996, however, a pipe bomb exploded at one of the outdoor exhibits, killing two people and injuring 111 others. President Clinton responded to the attack by demanding that Congress quickly pass another antiterrorism law. White House spokesperson Mary Ellen Glynn told the press, "He'd like to give the FBI more tools so there will be no more bombing like at the Olympics."10

On September 11, 2001, al-Qaeda terrorists hijacked four airplanes. The terrorists flew two planes into the World Trade Center, collapsing both office towers. The third plane crashed into the Pentagon. The fourth plane crashed in rural Pennsylvania, apparently after passengers attempted to wrest control of the aircraft from the hijackers. Those coordinated attacks killed more than 3,200 people and injured hundreds more. Two weeks later, President Bush and Attorney General John Ashcroft proposed the "Antiterrorism Act of 2001."11 Among other things, the bill would give the government a freer hand to conduct searches, detain or deport suspects, eavesdrop on internet communication, and monitor financial transactions. Sen. Trent Lott welcomed the proposal, declaring "We cannot let what happened [on September 11] happen in the future."12 When President Bush signed the bill into law in October, he said the legislation would enable the police "to identify, to dismantle, to disrupt, and to punish terrorists before they strike."13

In a matter of weeks, however, it became clear that the new antiterrorism law could not alter reality. On December 22, 2001, alQaeda terrorist Richard Reid boarded an American Airlines flight from Paris to Miami.14 In mid-flight, Reid tried to ignite explosives that were hidden in his shoes. By sheer happenstance, a flight attendant noticed that Reid had struck a match, so she

President Clinton responded to the attack by demanding that Congress quickly pass another antiterrorism law.

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If the government cannot discipline itself for dereliction, negligence,

incompetence, poor perfor-

mance, and corruption, why in the world should it be rewarded with additional funds and additional powers?

immediately confronted him about what he was doing. When Reid assaulted the flight attendant, passengers intervened and overpowered Reid, tying him up until the plane could make an emergency landing in Boston. An FBI agent later testified in court that Reid could have blown a hole in the airplane, possibly killing all 197 persons on board the aircraft.15 The Reid incident and the anthraxladen letters that have killed several people are the most powerful recent evidence that the president and his police agents are not capable of stopping terrorist attacks.

Breaking the Cycle

Defense and intelligence experts know that it is only a matter of time before the next terrorist attack. In fact, Secretary Rumsfeld warns that Americans should brace themselves for attacks "vastly more deadly" than the September 11 calamity.16 If recent experience is any guide, policymakers will respond to any such an attack by rushing to enact more antiterrorism legislation in a desperate attempt to give police and intelligence agencies additional powers to stop the killing. That would be a profound mistake. It is vitally important for policymakers to break the recurring cycle of enacting antiterrorism legislation before the pillars of our constitutional republic are completely undermined. When the next terrorist atrocity occurs--and it will occur--policymakers should refrain from legislation--at least until they have paused to deliberate four issues: (a) accountability, (b) history, (c) reality, and (d) liberty.

Deliberate Accountability before Legislating Before policymakers come to the conclu-

sion that there is too much freedom and privacy in America and that the police and intelligence agencies do not have enough power, they ought to thoroughly examine the question of how well the government has utilized the powers that it already wields. This is common sense. If the government cannot discipline itself for dereliction, negligence, incompetence,

poor performance, and corruption, why in the world should it be rewarded with additional funds and additional powers? Here are just a few of the issues that Congress should have investigated before it acquiesced to the president's demand for antiterrorism legislation following the September 11 attack.

? Federal officials in both the intelligence

and law enforcement community were repeatedly warned that terrorist attacks in the United States were likely. The respected Israeli journalist Ze'ev Schiff reported that when the former head of Israel's Shin Bet security service warned Attorney General Janet Reno, FBI director Louis Freeh, and Central Intelligence Agency director George Tenet that terrorist cells were being set up on U.S. soil, "They looked at him forgivingly, and claimed that he was exaggerating."17

? The Department of Justice and the FBI

want to access and monitor the checking account activity and e-mail traffic of 200 million American citizens, but federal investigators inexcusably failed to monitor U.S. flight schools for potential terrorists. Shortly after the September 11 attack, FBI director Robert Mueller described news reports that the suicide hijackers had received flight training in the United States as "news, quite obviously," adding, "If we had understood that to be the case, we would have--perhaps one could have averted this." Mueller, who had only assumed the directorship of the FBI a week earlier, was apparently not yet aware that the bureau had known for years that suspected terrorists with ties to Osama bin Laden were receiving flight training at American schools.18

? Members of Congress recently heaped

praise on FBI whistleblower Colleen Rowley and Enron whistleblower Sherron Watkins, but thus far no congressional committee has invited Mary Schneider to the nation's capital to tell her story. Although it is now common knowledge

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that al-Qaeda terrorists involved in the September 11 attack used Orlando, Florida, as a staging area, Schneider reportedly tried to blow the whistle on their activity months in advance of the attack. Schneider, a 20-year veteran of the Immigration and Naturalization Service, reportedly warned both the FBI and Attorney General John Ashcroft that aliens connected with bin Laden were illegally residing in the Orlando area. Schneider came to believe that terrorists were plotting an attack on an American target, but her pleas for an investigation fell on deaf ears. If her explosive allegations are true, one wonders how the Enron whistleblower could be called to testify before Congress, but not Schneider. After all, the collapse of the World Trade Center is far more serious than the financial collapse of an energy company.19

? After September 11, an invaluable lead

on bin Laden's whereabouts was reportedly compromised when certain senators divulged highly classified information regarding an intercepted phone call by al-Qaeda terrorists. That lapse in judgment was both astonishing and unpardonable. Capturing or killing bin Laden is the key to destroying the alQaeda terrorist network. Tipping off the terrorists about our capability to intercept their phone conversations, and thus letting bin Laden slip through the fingers of the CIA, put scores of American lives at risk. One wonders what a senator has to do before his colleagues will institute formal expulsion proceedings or even a censure. To allow such irresponsible people to cast a vote on antiterrorism legislation, and to have them exercise their judgment on the possible necessity of curtailing the civil liberties of the American people, is nothing short of a travesty.20

Columnist George Will once observed that when failures are not punished, failures proliferate.21 If our policymakers evade any of the

issues mentioned above, the future of America seems quite bleak. It is noteworthy that not a single employee in the federal government has lost his or her job in the wake of September 11.22 While it is possible that no one was truly at fault, a much more plausible explanation is that there is a general unwillingness to hold government officials accountable for failure.

Deliberate History before Legislating History should matter. Before policymakers

come to the conclusion that there is too much freedom and privacy in America and that the police and intelligence agencies do not have enough power, they should pause to consider how much respect the federal government has shown for individual American citizens, the law, and the Constitution. Here are just a few events that should not be soon forgotten.

? The FBI has used its surveillance powers

to interfere in domestic politics. During the 1960s and 1970s, the bureau tried to undermine and disrupt the civil rights movement and the movement against the Vietnam war. In 1964, the bureau went so far as to attempt to blackmail Martin Luther King in the weeks preceding his ceremony to receive the Nobel Peace Prize. To thwart King's rising stature, the FBI threatened to give the news media evidence of King's adulterous affairs if he did not commit suicide.23

? The FBI has given some of its informers a

license to commit crime. The bureau has looked the other way while sociopaths committed murders and innocent people were jailed for those crimes.24

? When an FBI sniper was indicted by a state

prosecutor on manslaughter charges, the Department of Justice urged the court to dismiss the case because "federal law enforcement officials are privileged to do what would otherwise be unlawful if done by a private citizen." In other words, homicide statutes do not apply to federal police agents.25

? In 1993, the FBI used tanks to demolish

a building containing children. Attorney General Janet Reno told everyone that

One wonders what a senator has to do before his colleagues will institute formal expulsion proceedings or even a censure.

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Policymakers should carefully

consider the lessons of history before they decide

to confer more power on the government.

such an operation was necessary because "babies were being beaten" and the tanks were creating "escape routes." However, a week later, the attorney general admitted that she had no evidence that children were being beaten.26

? The Department of Justice has told the

Supreme Court that it is perfectly legal for the government to take property away from a citizen who has done absolutely nothing wrong.27

? In 2000, the Department of Justice main-

tained that the Second Amendment to the U.S. Constitution does not really guarantee the right of citizens to keep and bear arms. The government can, in its discretion, take guns away from the citizenry.28

? The Tenth Amendment to the U.S.

Constitution says that the powers that are not delegated to the federal government are reserved to the states, or to the people. The Department of Justice, however, has maintained that the federal government's powers are essentially unlimited or "plenary."29

Lord Acton was correct when he observed that power tends to corrupt. All too often, government officials come to disdain any limitations on their power. Policymakers should carefully consider the lessons of history before they decide to confer more power on the government.

Deliberate Reality before Legislating In a free society, the police maintain law

and order primarily by reacting to citizen complaints, investigating crimes that have already occurred, and then apprehending the culprit. In America, the government is only rarely able to "prevent" a crime before the fact. Unlike, say, the secret police in China, our government cannot move against a person who has not yet broken the law. Thus, criminal predators can often bide their time for the most advantageous set of circumstances conducive to their success. That is, criminals can choose the time, place, and victim. Not surprisingly, to avoid detection,

criminals invariably decide to strike when the police are not on the scene.

Because terrorists enjoy the same key advantage against our intelligence and law enforcement agencies, policymakers must pause before they rush to the conclusion that more government power is the "solution." Even though America has the most powerful military force in the history of humankind, defense and intelligence experts have been forced to acknowledge the relative ease with which Americans can be attacked. In 1997, Secretary of Defense William Cohen observed:

With advanced technology and a smaller world of porous borders, the ability to unleash mass sickness, death, and destruction today has reached a far greater order of magnitude. A lone madman or nest of fanatics with a bottle of chemicals, a batch of plaqueinducing bacteria . . . can threaten or kill tens of thousands of people in a single act of malevolence.30

The harsh reality was summed up best in a Defense Department Task Force report: "While clearly it would be preferable to prevent incidents rather than mitigate them, the United States cannot count on prevention."31 Unlike nuclear weapons, chemical and biological weapons can be fairly easily built, stored, and disseminated. A terrorist can spread biological or chemical agents with an aerosol sprayer from the rooftop of an apartment building or by leaving a suitcase in a busy train station or sports arena.

When Attorney General Ashcroft testified before Congress after September 11, he was asked whether the expanded powers that he was seeking would have given the FBI the ability to prevent the attack on the World Trade Center. Ashcroft conceded that it would be misleading for him to offer that kind of assurance.32 Sen. Patrick Leahy (D-Vt.) was even more blunt when he acknowledged:

No one can guarantee that Americans will be free from the threat of future

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