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ANTI-TERRORISM LAWS: TOO MUCH OF A GOOD THING
Professor Lewis R. Katz
Case Western Reserve University School of Law
JURIST Guest Columnist

The September 11 attack on America was a blow to the heart for all of us who cherish freedom. Not only did the terrorists attack the Pentagon, a military center, they also calculated and carried out attacks to inflict massive civilian casualties on American soil. The attacks forever destroyed America痴 sense of security that we were invulnerable at home. In retrospect, it was a misplaced sense of security; the 1993 World Trade Center bombing should have alerted us to our vulnerability and to the determination and hatred of those who would do us harm. It is likely that the Islamic fanatics who planned these attacks have other sleepers within the United States preparing for additional suicide missions and new horror.

In the face of expected on-going attacks, our country痴 leaders needed to consider expanding government powers to thwart the conspirators. Thus the events of September 11, and even more so, the continuing threat after that date, required me to analyze the framework that I had constructed to balance individual rights and government authority, and to re-evaluate some of my long-felt notions of limited government. Most of my career has been spent examining the relationship of the government and the people of the United States as reflected within the framework of the Fourth Amendment. Since 1971, police power has grown and the people痴 protections under the Fourth Amendment have narrowed as police power grew. Generally, I have lamented the balance struck in favor of greater power for the government in areas such as the so-called war on drugs. That war was was being lost, and the principal casualty was the Fourth Amendment rights of Americans.

Notwithstanding the Supreme Court rulings of the past thirty years, the current real threat to America impels us to test the Fourth Amendment further. The Fourth Amendment framework is not a straight jacket, or as Justice Robert Jackson put it best, 鍍he Bill of Rights is not a suicide pact. The Amendment prohibits only unreasonable searches and seizures. What is reasonable varies depending upon the circumstances. Government has far greater leeway to intrude upon Fourth Amendment rights and to bypass the Amendment痴 preferred procedures during a real emergency. During normal times those powers are more limited.

Consequently, we must understand that the Fourth Amendment seeks to ensure a balance between individual rights and legitimate government law enforcement authority. That balance must satisfy two essential ends: it must protect human freedom while accommodating legitimate law enforcement needs. What is reasonable depends upon the immediate circumstances, and the circumstances of September 11 are overwhelming and likely to require additional adjustment to the Fourth Amendment balance. When viewed through that lens, certain proposals and government conduct, though by no means all, appear reasonable.

The USA Patriot Act of 2001 is a red-flag type of name guaranteed to raise suspicion: What type of extreme government behavior is Congress trying to hide under that apple-pie name? Yet the essentials of the Act do not trouble me. The increased authority to conduct electronic surveillance of telephone and internet communications strikes me as reasonable, for the concept of reasonableness must be flexible enough to incorporate modern technology. The Act expands government eavesdropping authority to include mobile phones and computer communications which were not available and in wide use at the time the power was last defined. Because the terrorists have access to modern technology, the Fourth Amendment command of reasonableness cannot and will not deprive the government of adequate tools for legitimate law enforcement needs. Moreover, the threat is so dire that the command of reasonableness may require the granting of authority that would not be forthcoming in the fight against ordinary crime.

The present emergency also appears to justify a national identification card. I have always loathed the notion of a national ID. My views were shaped by the misuse totalitarian European governments made of such cards. In ordinary times, I might have continued to oppose a national ID. Now, I am no longer adverse to a national ID as a tool to combat terrorists operating the United States. I advocate that such IDs should be equipped with the most current technology, such as retina recognition, to ensure that the person presenting the ID is the one to whom it was issued. No one can be certain that such IDs would have prevented any of the hijackers from boarding any of the four doomed flights, but it may have prevented access to the planes by one or more of the terrorists who were illegally in the United States or whose presence in the United States may have been by then suspect. In any event our efforts now must be geared towards preventing a repeat of September 11.

My acceptance of a national ID in no way signifies acceptance of a proposition that police or government agents may at any time or under any circumstance demand production of that ID. During the Vietnam war some federal officials and local law enforcement officers thought that they could demand to see a young man痴 draft card at any time. They were wrong; the Fourth Amendment provides standards for stopping and asking individuals for identification. The same rules apply now and would limit when and under what circumstances government agents may ask to see someone痴 ID. Airports are appropriate venues for such requests. Indiscriminate and arbitrary stops on the street are not.

The events of September 11 also may call for reconsideration of our ideas about racial profiling. The thought of racial and ethnic profiling is an anathema to me. It remains so in the context of police stopping automobiles on the highway. It is not so, however, at an airport boarding station. Nor do I protest when government officials now keep closer tabs on foreign students or elect to make inquiry of some foreign students and not of others. I had no outrage when the FBI talked to one of my students from the Arab gulf region who is a former jet fighter pilot. They checked his bona fides and then left him alone. I was reassured both that they appeared on his doorstep within 72 hours of the September 11 attacks, and later when they elected to leave him alone after speaking with him.

The detention of more than one thousand Arab aliens in the United States is more troubling but not alarming. The decision to detain these men is not in any way reminiscent of the relocation of all Japanese-Americans from the West Coast following the bombing of Pearl Harbor. We are talking about small numbers as well as a very small percentage of Arab aliens present in the United States. I lament that our government will make mistakes, and that innocent people will be detained. The existence of mistakes will not necessarily make the initial or ongoing detention unreasonable. The Fourth Amendment looks for reasonable cause, not perfect reasoning. Moreover, reports of the release of some of these men and their return to their normal lives is reassuring. However, reports of the conditions of the detention and the limitations placed upon the detainees lawyers are troubling and offensive.

My approval of the Justice Department痴 policies and behavior is not unlimited. The history of American freedom is based upon the American people痴 suspicion of government, reinforced in every generation by our government痴 uncanny ability to push the envelope too far. Government overreaching reinforces suspicion of government, and even in these times we must not simply accept government claims that certain rights should be curtailed.

The Justice Department痴 announcement that it will eavesdrop on communications between some suspects and their lawyers when the Attorney General has reasonable suspicion that the suspect may disclose information about on-going or future terrorist activities brought my new-found romance with government to a crashing halt. I do not doubt that unusual circumstances might arise where there is legitimate cause to intercept such communications, even though the very concept of such interceptions will have a chilling effect upon the lawyer-client relationship. I am deeply troubled, however, that the administration would claim such authority for the Attorney General rather than acknowledging the preferred constitutional rule which requires prior judicial authorization for such interceptions. Bypassing the neutral and detached magistrate is not necessary, results in the collection of too much power in the executive branch, and is an unreasonable search under the Fourth Amendment and a violation of the Sixth Amendment right to counsel.

As if the decision to encroach on the lawyer-client relationship were not enough to take the bloom off this rose, the White House cut short our honeymoon when it announced that the administration reserves the right to try suspected terrorists before military commissions, whether those persons are apprehended in the United States or in Afghanistan. The Attorney General claims that people who commit such acts should not receive the rights guaranteed under the Bill of Rights to persons accused of crime. Whatever became of the presumption of innocence? Until these people are lawfully convicted, we have no right to assume their guilt. The government has even reserved until later what rules of evidence will prevail at such trials and what standard of proof will be required for a guilty verdict.

I cannot imagine any circumstance that would justify trying any person apprehended in the United States in front of a military commission, without the Sixth Amendment rights that attach to any defendant in a civilian or military court, when the civilian courts are functioning. There is no legitimate necessity for such drastic action which would bypass the fundamental rights which are the hallmark of American justice. We must not sacrifice our most fundamental principles or we run the risk of losing our freedom even at the same time that we prevail over those who hate us for our very system of freedom.


Lewis R. Katz is John C. Hutchins Professor of Law at Case Western Reserve University School of Law. He welcomes comments on this essay at JURIST@law.pitt.edu.

November 24, 2001

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