Brian J. Foley [Florida Coastal School of Law]: "In response to the revelations about presidential spying, several Administration officials, including President Bush and Attorney General Gonzales, have argued that the electronic surveillance program -- which appears to exceed the limits allowed by current law -- is "necessary" to prevent another terrorist attack. They also say, as Vice President Cheney did last month, that 9/11 itself might have been prevented if the government had been able to conduct this sort of surveillance. "If we'd been able to do this before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon," he said.
Perhaps. But the administration's response elides an important point: other, more direct, and less-burdensome-on-our-freedom methods could have prevented 9/11, too and probably far more easily.
That this elision often goes unchallenged most likely results from a prevailing myth about 9/11, one that many of our leaders foster: that it was, at the time, inconceivable and unstoppable. That the mayhem of that day just happened, out of the clear blue sky, a total surprise that we could not have foreseen and therefore could not have prevented.
Yet 9/11 was conceivable, well beforehand. In 1994 an Air France flight was hijacked; French authorities determined shortly afterward that the hijackers' goal was to crash the airliner into the Eiffel Tower. There were also well-known fears in July, 2001 that planes would be hijacked and rammed into the G-8 summit in Italy. The Italian government set up anti-aircraft defenses, and President Bush reportedly slept on an aircraft carrier.
9/11 was stoppable. Our government was warned about hijackings in the summer of 2001. Why didn't it require airlines to lock cockpit doors? (Terrorists still might have been able to blow up the plane or stab or shoot all the passengers, but they would not have been able to take control of the plane and fly it into a casualty-rich target.) Why didn't the government provide air marshals, or require stepped-up weapons screening? And why, when the actual hijackings happened on 9/11, didn't the government scramble fighter planes pursuant to normal FAA and NORAD procedures? The skies above the Pentagon remained undefended more than 30 minutes after the second plane hit the World Trade Center.
No spy program like the secret one the president created after 9/11 was required for our government to get these warnings, or to take these basic precautions.
In response to 9/11, our government has chosen to wage wars (which have cost billions of dollars, killed thousands of innocent people, and arguably increase our chance of being attacked at home) and imposed widespread electronic eavesdropping, instead of less costly, less burdensome, more effective, measures. We constantly hear from high levels that the country is not prepared for another terror attack. Targets, such as chemical plants, reportedly remain vulnerable. Our ability to respond to disaster, which can limit casualties, appears virtually nonexistent as the local, state and federal "response" to Hurricane Katrina revealed.
The reasonable response to the government's spy program, and officials' claims that it is "necessary" after 9/11, is not that we should give the president such increased power. The reasonable response should be, "Try harder." We should tell our public servants to go back to the drawing board and look at other options legally available to them, and implement those. If our leaders think that those options are inadequate, they should tell us why. No: they should be forced to convince us why. My Inner Founding Father says the burden of proof is on the government.
In short, we should hold the government accountable for its failure to take reasonable precautions to stop 9/11 (why has no one been fired?) before we give it uncheck-able powers, and naively trust it to use them legitimately and wisely."