The war on terror: Destroying freedom in order to save it?

The war on terror: Destroying freedom in order to save it?

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Eric Holder, guardian of freedom / file photo

WASHINGTON, October 24, 2014 — In the name of the war on terror, government has dramatically expanded its power and the freedom of Americans has been diminished.

The government has been spying on American citizens, invading the privacy of millions of people for no apparent reason. In his important new book, “Pay Any Price,” James Risen, a Pulitzer Prize winning reporter for The New York Times, records many of the trespasses against the Constitution committed by the National Security Agency (NSA).

Diane Roark worked on the staff of the House Intelligence Committee. When she realized that the NSA was collecting data on American citizens, she tried to find out more and to warn people. She assumed that she had stumbled across a rogue operation and asked members of Congress about it. She got nowhere. She then contacted a federal judge who oversaw intelligence matters, only to have the judge report her to the Justice Department. She went to officials she knew at the CIA and the White House.

According to Risen, Roark eventually realized that all these people had known about the NSA program and effectively approved of it. She retired from her Congressional job and moved to Oregon. One morning in July 2007, FBI agents were at her door with a search warrant and a sealed affidavit that allowed them to go through her house to look for evidence that she leaked information about the NSA to the press. Risen reports that others who raised concerns about the NSA’s violation of the law received similar treatment, one reason, he suggests that Edward Snowden fled overseas.

The power the NSA has assumed in the name of the war on terror is unprecedented. Andrew Napolitano, a former judge of the Superior Court of New Jersey, notes that, “The NSA … makes no pretense about presenting probable cause to a judge. Rather, it asks a judge on a secret court (so secret that the judges themselves are kept from the court’s files) for general warrants. A warrant based on probable cause must specifically describe the place to be searched and the person or thing to be seized. General warrants, which the Constitution prohibits, permit the bearer to search wherever he wishes and seize whatever he finds. British government agents and soldiers used general warrants issued by a secret court in London to invade the privacy of colonists. The British also used another tool now prohibited by the Constitution — called writs of assistance — which permitted certain agents and soldiers to write their own search warrants and serve them upon the colonists.”

Under the Patriot Act, government agents can and do write their own search warrants, called “national security letters.” The Patriot Act prohibits the recipient of an agent-written search warrant from telling anyone about it. Since 2001, FBI agents have written more than a half-million of their own search warrants, and their targets don’t even know what was done to them. This section of the Patriot Act is now being challenged by Twitter and Google in the 9th U.S. Circuit Court of Appeals in California. Two federal judges have already found this section of the Patriot Act to be in violation of the First Amendment and unconstitutional.

Both liberals and conservatives, Republicans and Democrats, joined together to support the Patriot Act. Attorney General Eric Holder has been one of its strongest supporters, He approved the NSA’s authority to sweep up millions of phone records of Americans accused of no crime. He subpoenaed journalists and led a crackdown of their sources. He defended the FBI’s right to track people’s cars without warrants and the president’s right to kill an American who had joined Al Qaeda.

“This is an attorney general who displayed an odd approach, an odd schism between civil rights and civil liberties,” said Elizabeth Goitein, a lawyer with the Brennan Center for Justice. “If civil liberties were on his mind, and we didn’t see it, well that and $2 will get you a cup of coffee.” Groups such as the American Civil Liberties Union, which supported some of Holder’s initiatives such as his call to end mandatory minimum sentences for minor drug crimes, sued him over government surveillance. They demanded documents detailing his department’s policies for tracking cars using hidden transmitters but were rebuffed. They also fought to release the legal opinions authorizing the attack that killed Anwar al-Awlaki, an American who joined al-Qaeda.

Under Holder, the government accepted the theory that records that might someday be relevant to a terrorism investigation were immediately relevant, and could be seized. That analysis underpinned the NSA’s collection of phone records. Under Holder, government whistleblowers were viewed as the enemy. His Justice Department started more investigations than any of his predecessors into government officials who disclosed information to reporters. He subpoenaed journalists’ e-mails and phone records and demanded their testimony. New York Times reporter James Risen, who has refused to reveal his sources about information on Iran, remains under subpoena. Even Holder has acknowledged that his efforts went too far at times.

Editorially, The New York Times, a supporter of many of Holder’s initiatives, pointed to the fact that, “Under Mr. Holder, the Justice Department approved the targeted killing of civilians, including Americans, without judicial review, and the Obama Administration fought for years to keep the justifications for such efforts secret. In his zeal to stop leaks of government information, Mr. Holder brought more prosecutions under the Espionage Act than during all previous presidents combined. In tracking the sources of leaks, prosecutors seized phone and email records of journalists who were doing their jobs.”

James Bovard, author of “Lost Rights” and “Attention Deficit Democracy,” discusses the manner in which the war on terror has been used as a rationale for dramatically increasing the power of government: “…the president now claims a right to kill Americans and foreigners without a trial, without notice and without any chance for targets to legally object. He has authorized drone attacks that have killed thousands of people in Pakistan, Yemen, Somalia and elsewhere; the casualties include large numbers of women and children who posed no threat to the United States. At least four Americans have also been executed by drones thanks to White House fiats.”

The war on terror has, Bovard argues, helped negate the Fourth Amendment’s prohibition on warrantless, unreasonable government searches: “Prior to the past decade, anyone who asserted that the Feds should be allowed to vacuum up scores of millions of Americans’ emails would have been ridiculed as paranoid and authoritarian. When Americans learned in mid-2013 that the NSA was doing exactly that, the Obams administration initially denied the facts and then later invoked national security to justify the mass intrusion. However, the NSA is so paranoid that its definition of terrorist suspect — i.e., extremist — includes ‘someone searching the Web for suspicious stuff.’ … The Department of Homeland Security has attached the ‘extremist’ tag to gun-rights activists, anti-immigration zealots, and individuals and groups ‘rejecting federal authority in favor of state and local authority’ — even though many of the Founding Fathers shared the same creed. A 2012 Homeland Security report went even further, stating that being ‘reverent of individual liberty’ is one of the traits of potential right-wing terrorists.”

In his first speech to Congress in early 2009, President Obama said, “To overcome extremism, we must also be vigilant in upholding the values our troops defend, because there is no force in the world more powerful than the example of America.” He must have changed his mind as he has used the war on terror as a basis for dramatically expanding the power of government which has been accompanied by increasing limits upon the rights of Americans.

There is no doubt that the war on terror is real and the threat from terrorists a growing danger. Recent events in Canada show us the danger of ideologically driven individuals. The number of men and women from Western countries, including our own, going to the Middle East to join ISIS is troubling. The possibility that they will return to carry out terrorist acts in Paris, London and New York is real. That our government should act to keep our country safe is beyond question. But giving unlimited power to Washington to invade our privacy and violate our basic rights in the name of “national security” is hardly the way to do it. Historically, those who would limit our freedom usually have a good reason for doing so, and “national security” is usually the mantra they invoke.

We can both win the war on terror and maintain our freedom and Constitutional rights, although those in power at the present time don’t seem to think so. They would sacrifice our freedom to save it, not a bargain we should embrace.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.