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Privacy or Protection? By: John Yoo
San Francisco Chronicle | Thursday, February 15, 2007


Civil libertarians would have us believe that the war on terrorism has introduced a vast new national security state that is sweeping suspects off the street without charge, listening in on every phone call and throwing citizens before military courts. The only problem is that the targets of their criticism lived in the last centuries.

These broad infringements of constitutional liberties in wartime took place under Presidents Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt. While our government has limited some liberties in today's war, these restrictions have been much more modest, have struck a better balance between security and liberty and rest far more easily within the Constitution.

President Lincoln, for example, detained approximately 12,000 civilians without charges and instituted military trials for citizens suspected of aiding the rebellion. President Wilson ordered the warrantless monitoring of phone calls for national security reasons. President Roosevelt authorized the FBI to listen to every phone call in the country, more than a year and a half before Pearl Harbor, contrary to the law. Once war began, FDR interned more than 100,000 Japanese-American citizens, using their race as a proxy for their loyalty to the country.

Rather than a rampant violation of constitutional rights, the Patriot Act represents only one step in the evolution of law enforcement practices to address the new international terrorist threat.

Contrast this with the state of civil liberties in this war. Yes, the Bush administration has established military trials, but only for noncitizen terrorists who violate the laws of war. Yes, the Bush administration has sent to military detention citizens who have allegedly joined with al Qaeda. How many? Two. Civil libertarians complained that these measures were illegal because they were undertaken solely under the president's war powers. Well, in October, Congress gave its explicit approval, overruling judicial efforts to block them.

One of the most misunderstood and exaggerated acts of legislation, the Patriot Act has long been the focus of civil libertarian complaints. Rather than a rampant violation of constitutional rights, the Patriot Act represents only one step in the evolution of law enforcement practices to address the new international terrorist threat. While critics obsessed on details like libraries, these were nothing new in the law.

But it would also be a grave mistake to believe that the Patriot Act represents a great leap forward in our abilities to stop terrorist attacks. We face a new enemy--al Qaeda--within our borders as we have not for many years, if ever.

Our political leaders should consider new ways of addressing this new type of threat. The NSA's terrorist surveillance program, which seeks to intercept communications into or out of the United States involving a suspected al Qaeda agent, represents an effort to go beyond the terrorism-as-crime approach.

Preventing terrorist attacks depends on spotting, in advance, patterns and connections in communications, travel and transfers of funds, rather than for waiting for the attacks to occur.

We must allow our intelligence agencies to connect the dots, to gather more data, search more broadly, and pool information among more analysts and agencies.

Once it was safe to assume there was little need for any domestic surveillance because we no longer faced any serious communist threat; instead, such activities imperiled the privacy rights of harmless students and protesters. The al Qaeda threat is not imaginary, nor an artifact of history, nor a distant or attenuated concern--it is quite real.

The threat of an out-of-control, Nixonian executive seeking to harass its political enemies is not what looms before us today. Legitimate political activities and speech by American citizens are not being suppressed. Three elections have occurred during the war on terrorism, with the last one switching control of Congress to the opposition party. Free speech and creativity have exploded on the Internet.

Civil libertarians suggest that any wartime reduction of civil liberties creates a "ratchet" effect that will permanently diminish freedoms in peacetime. Others say that panic always leads government to go "too far." Some claim that majorities will always abuse power to oppress minorities. Historical precedents provide some support for these claims.

But civil liberties have expanded in peacetime and contracted during emergencies throughout our history. Lincoln suspended habeas corpus, but also liberated the slaves and expanded individual rights against the states. Civil liberties surged in the decades after World War II. Wars sometimes lead to social and economic upheavals that expand individual freedom. Wartime governments have also moderated discriminatory policies to rally all sectors of the nation. War expands executive power. But it does so for a reason--because wars need to be won. Hate, opportunism or greed toward minorities occur outside of war as well. Slavery and Jim Crow were the products of peace, not war.

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