Review Essay—Terrorism and the Constitution: Security, Civil Rights, and the War on Terror

Review Essay: Terrorism and the Constitution:
Security, Civil Rights, and the War on Terror

John Riley

Riley, John . (Winter 2007). "Review Essay—Terrorism and the Constitution: Security, Civil Rights, and the War on Terror." Alaska Justice Forum 23(4): 2–5. Debates on justice policy often reflect fundamental disagreements about the extent to which either the rights guaranteed in the U.S. Constitution or the crime-fighting mission of our justice agencies should be emphasized. Terrorism and the Constitution by David Cole and James X. Dempsey is a critical account of our increasing willingness to trade civil rights for an enhanced sense of security, a trade that the authors argue will ultimately leave us both unsafe and unsatisfied.

Terrorism and the Constitution: Sacrificing Civil Liberties
in the Name of National Security
, 3rd ed.
David Cole and James X. Dempsey
New York: The New Press 2006.
302 pages.

Justice is a balancing act. Those who follow criminal justice issues are well-aware that debates on justice policy often reflect fundamental disagreements about the extent to which we should emphasize either the rights guaranteed in the U.S. Constitution or the crime-fighting mission of some of our justice agencies. In general, and particularly in the academic world, the American system’s historic emphasis on civil liberties, the presumption of innocence, and our traditional respect for the rights of the accused have been regarded as essential features of our democratic society. At the same time, it is widely recognized that law enforcement agencies, which operate in a world that is often both complicated and very dangerous, must confront threats that can seem more immediate and more consequential than those associated with abstractions like restricted civil rights. For some, striking the right balance between civil rights and effective crime control may seem to be more a matter of limiting rights and empowering law enforcement. Out of this concern for an approach that balances civil liberties and the practical requirements of law enforcement come such well-known legal innovations as the public safety exception to the exclusionary rule, the “plain-view” search, and the “Terry” stop. Finding the right balance between civil rights and efficient crime control is, and will doubtless continue to be, a central preoccupation of the criminal justice system.

Terrorism and the Constitution, by David Cole and James X. Dempsey is a book about the balance between civil rights and public safety. It is a critical account of our increasing willingness to trade civil rights for an enhanced sense of security, a trade that the authors argue will ultimately leave us both unsafe and unsatisfied. Cole and Dempsey believe that the federal government, and particularly the Federal Bureau of Investigation, have used America’s fear of terrorism to justify broad increases in government power while simultaneously undercutting important civil liberties. For Cole and Dempsey, some of our most important legal and political traditions are now challenged by new government policies associated with the war on terrorism. These include such fundamental ideas as the presumption of innocence, the right to counsel, the right to confront witnesses, the right of access to the courts, and privacy rights.

There can be no question that the changes that have characterized the last few years have involved a radical reinterpretation of the rights and responsibilities of the executive branch and the law enforcement organizations under its control. Arguing that these measures are justified by the demands of a global war on terror, the parameters of which are ill-defined, supporters of an increased emphasis on effective crime control have adopted policies that would have seemed shocking even at the height of the communist threat during America’s Cold War. The government has openly asserted the right to arrest suspects without judicial review, to impose lengthy incarceration without a trial or even any access to the courts, and to order investigation of political groups by criminal justice agencies without any evidence of criminal wrongdoing. Privacy rights have also been called into question as the executive branch claimed the right to engage in controversial practices that would make it easier for government agencies to track library use and credit information, to monitor mail and electronic communications, and to search private homes without first serving the kind of traditional warrants described in the Fourth Amendment. The use of secret evidence and witnesses to justify detention of suspected terrorists, clearly prohibited by the Constitution, is now regarded by those in power in Washington as a justifiable wartime exception to traditional standards. Coercive interrogation practices and suspension of habeas corpus for suspected terrorists, while not entirely novel even in America, are perhaps the most radical of the many departures from conventional American legal practices defended by the executive branch in the last few years. Taken as a whole, these policies and practices have dramatically altered the balance between civil rights and effective crime control in post 9/11 America.

Cole and Dempsey are not newcomers to public debate on constitutional issues. Their names are particularly well-known to those who follow the debates on limits to the power and discretion of federal law enforcement. David Cole is a Professor of Law at Georgetown University and a regular contributor to The Nation. James X. Dempsey is a Director of the Center for Democracy and Technology and a former assistant counsel to the U.S. House of Representatives Judiciary Committee on Civil and Constitutional Rights.

The first edition of Terrorism and the Constitution was published in 1999. A second edition appeared in 2002 soon after the 9/11 attacks. The third and current edition, substantially revised since 2002, was published in 2006 by The New Press in New York. This third edition includes valuable new materials on the Patriot Act, and it includes discussion of National Security Letters, “sneak and peak” searches, “data mining” practices, and the recent court challenges to government practices involving immigrants and detainees. In brief, the authors are concerned that fear of terrorism has encouraged the federal law enforcement community to move away from appropriate constitutional restraint in the direction of highly politicized practices that have a chilling effect on freedom of speech and association and target people based on political ideology rather than on evidence of criminal behavior. While some may see the legacy of 9/11 as an increasingly efficient crime control effort, Cole and Dempsey see this legacy in terms of guilt by association, ethnic profiling, data mining programs that erode personal privacy, and investigations lacking a solid criminal predicate.

Terrorism and the Constitution is organized in four parts. The first provides an historical account of federal investigations of First Amendment activities, focusing on the FBI’s investigative activities prior to 9/11. The authors make a persuasive case that the FBI’s investigative power has frequently been used to harass those involved in controversial political activities, and to disrupt controversial social movements, even where no evidence of illegal activity has been noted. To do this, the authors begin the book with five stories, examples of “the recurring nature of the government’s misguided response to ideological threats.” The stories begin in the years of the Cold War and end in an account of law enforcement since 2001.

The first of these stories is that of Frank Wilkinson, whose advocacy of racial integration in public housing in Los Angeles brought him to the attention of the FBI. This is a truly tragic account of McCarthyism in the 1950s and the continuing resistance to civil rights activities even into the next decade. According to Cole and Dempsey, FBI tactics in the case included a policy of deliberate “neutralization” of Wilkinson’s political activities, which involved using “disruptive tactics” during Wilkinson’s speaking engagements. The FBI surveillance and investigation in this case went on for thirty-eight years and cost several million dollars. In the end, with the exception of a contempt citation issued when he refused to “name names” for a Congressional investigation, the government concluded that Wilkinson had not engaged in any illegal activities.

The other four stories develop similar themes. In their discussion of the 1960s and 1970s, the authors focus on the FBI’s embarrassing COINTELPRO operation, which targeted the civil rights movement, anti-war organizers, environmentalists, and other political activists. For Cole and Dempsey, whether judged from the standpoint of civil libertarians or from the perspective of those advocating more efficient law enforcement, COINTELPRO was, like the Wilkinson case, an unmitigated failure.

At the peak of its efforts the FBI was investigating all major protest movements, from civil rights activists to Vietnam War protesters to women’s liberation advocates. Standard FBI methodology included bugging of homes and offices, wiretapping, break-ins, and informants. In addition, the FBI sought to spread misinformation, foment internal dissension, and even provoke illegal activity. The effort consumed tremendous resources and sowed distrust and fear among many seeking peaceful change in government policies, but it produced little evidence of criminal conduct.

The government’s investigation in the 1980s of members of the Committee in Solidarity with the People of El Salvador (CISPES) provides Cole and Dempsey with another example of what they take to be law enforcement’s elevation of political priorities over civil rights. The authors indicate that while the FBI initially denied that the organization was investigating CISPES members at a hearing in 1985, subsequent Freedom of Information Act filings revealed that they were, in fact, doing just that. Cole and Dempsey point out that again, in spite of extraordinary efforts that clearly had implications for First Amendment activities, the FBI was unable to produce any evidence of the alleged terrorist activity that justified the investigation.

Not surprisingly, the more recent cases focus on Palestinians, Muslims, and America’s newfound fear of terrorism. Cole and Dempsey’s last two stories highlight the vulnerability of immigrants and minority group members in a society where fear of violent victimization makes it increasingly hard for many Americans to appreciate the importance of constitutionally protected rights to free speech and association. The fourth case involves Khader Musa Hamide, a Palestinian activist and political organizer who immigrated to the U.S. in 1971. Cole and Dempsey indicate that after a three-year investigation of Hamide produced no evidence of criminal behavior, the FBI sought to interfere with Hamide’s political activity by asking the Immigration and Naturalization Service to deport him under “long-unused provisions of the McCarran-Walter Act.” The Justice Department appealed the case to the Supreme Court after lower courts initially blocked what they described as the prosecution’s attempt to show “guilt by association.” When this edition of Terrorism and the Constitution went to press, the case was still in the courts, an eighteen-year ordeal for Hamide, who has never been shown to have committed or advocated any terrorist act.

The last of the five stories, that of Sami al-Hussayen, is not well known. Al-Hussayen was a student in Idaho when he came to the attention of the federal government. The government indicted al-Hussayen for his alleged part in anti-American terrorism. He was accused of posting links on his website to other websites that presented speeches by Muslim clerics advocating jihad against America. Under the Patriot Act, the government claimed that his links constituted illegal support for terrorist organizations. The government never claimed that al-Hussayen had ever advocated, planned, or participated in terrorism. It simply indicted him for posting links on a website, using a theory that would apparently make universities, television stations, and newspapers vulnerable to future prosecution. While al-Hussayen was eventually acquitted on all charges of terrorism, he spent almost a year and a half in jail before being released.

In the discussion of these five cases in Part One, Cole and Dempsey make a convincing case that at least some misuse of federal investigative power has happened for decades in America, and that this problem continues.

In Part Two, they examine legal restrictions on FBI authority, including the role of the judiciary in enforcing constitutional limits on law enforcement power. The history of the FBI has been characterized by a struggle to expand its powers of investigation in the face of periodic reform efforts intended to set limits on official discretion and demand increased accountability. Cole and Dempsey trace a pattern of episodic abuses of power followed by periods of reform, beginning with Attorney General Harlan Stone’s efforts to set limits on the bureau’s activities following the notorious Palmer Raids in 1920. During these raids, the Bureau of Investigation, the organizational forerunner of our current FBI, arrested approximately 10,000 persons suspected of being revolutionaries bent on the destruction of American democracy. Stone assumed control of a bureau that he believed had become a “lawless” organization and he promised to set limits on investigations. His reforms remained in place until the 1930s, when executive orders from President Franklin D. Roosevelt encouraged the new Federal Bureau of Investigation to begin a series of investigations focused on “subversive activities” and “potential crimes” in a variety of organizations. Investigations targeted many groups, including unions, youth groups, educational organizations, and even the coal, steel, and automobile industries. This pattern, involving repeating cycles of excess and reform, remained a feature of American law enforcement through the twentieth century.

Cole and Dempsey believe that the power to investigate has been used to limit protected First Amendment activities. And they call for restrictions on law enforcement agencies that would require evidence of criminal behavior to justify criminal investigation. For Cole and Dempsey, law enforcement’s efforts to monitor political dissent are misguided for at least two reasons. First, investigation has a chilling effect on free speech and on our freedom of association. Second, these efforts are misguided because long and expensive investigations focused on political dissidents distract agencies from the more important work of real crime fighting.

In Part Three, Cole and Dempsey focus on the Anti-Terrorism Act of 1996, a forerunner to the Patriot Act that helped to establish the legal framework for today’s domestic war on terror. The act allows the State Department to designate Foreign Terrorist Organizations in a process that is highly politicized and lacking sufficient objective criteria. It also makes it possible for government prosecutors to bring cases against individuals without proof that they have engaged in terrorism, aided or abetted terrorists, or planned to commit terrorism. Under the 1996 act, the government may freeze the assets of designated terrorist groups and use secret witnesses against those suspected of having links to terrorists.

The Anti-Terrorism Act of 1996 had particularly troubling implications for America’s resident aliens and also for those who wish to meet and talk with foreign visitors who bring alternative perspectives to American public policy debates. For many years U.S. Immigration policy was characterized by explicit legislative provisions allowing exclusion on ideological grounds. The McCarran-Walter Act of 1952 allowed the government to deny entry to foreign visitors who were suspected communists or thought to be critical of U.S. policy. This required no overtly criminal action on the part of those excluded. Those who disagreed with the political views of those in power were subject to exclusion simply on the basis of the beliefs they expressed. The exclusion provisions of our immigration law were eventually found to be inconsistent with our desire for an open society characterized by wide debate, and in 1990 provisions allowing ideological exclusion of immigrants were finally repealed. The Anti-Terrorism Act of 1996 reinstated provisions allowing ideological exclusion and made it possible once again to bar entry to those whose ideas are regarded as threatening. Such exclusionary provisions could have been used to deny entry to the U.S. to individuals such as Nelson Mandela, a leading figure in the fight against apartheid in South Africa, or Hanan Ashrawi, an advocate of non-violent conflict resolution in the Middle East. In addition to possibly barring those interested in promoting peaceful resolution of international conflicts, these laws also have an ex-post-facto quality that many will find disturbing. As Cole and Dempsey point out, foreign nationals can be excluded for activities that actually predate the laws used to exclude them. Laws allowing ideological exclusion of immigrants prevent all Americans from fully exercising their First Amendment rights by limiting face-to-face exchange of ideas in policy debates, at professional conferences, and in other public arenas.

In Part Four, the authors focus on legislative and law enforcement efforts to fight terrorism since 2001. As the centerpiece of these efforts, the USA Patriot Act has done even more to alter the balance between civil rights and the crime control powers of government agencies than the Anti-Terrorism Act of 1996. For Cole and Dempsey, the Patriot Act is a product of an aggressive and opportunistic executive branch acting in the face of weak and ineffectual congressional oversight.

The USA PATRIOT ACT (abbreviated from Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) was passed just six weeks after 9/11. Congress acted under extraordinary pressure from Attorney General John Ashcroft, who essentially threatened Congress that the blood of the victims of future terrorist attacks would be on its hands if it did not swiftly adopt the administration’s proposals…. The bill passed the Senate on October 11 by a vote of 98 to 1, following a brief debate that made it clear that even supporters of the bill had not read it and did not understand its provisions.

According to Cole and Dempsey, the Patriot Act has made it easier to exclude non-citizens or to detain them for suspected humanitarian aid to illegal organizations. It has expanded the government’s authority to conduct searches and wiretaps without showing probable cause. It authorizes secret searches even in cases not involving suspected terrorism and gives the CIA access to the power of criminal grand juries. Grand juries, because they have the power to compel witnesses to answer questions under oath, have long been the not-so-secret weapon of law enforcement investigation. Cole and Dempsey express several concerns about the use of grand jury power:

One of the most powerful tools of the criminal justice system is the grand jury – an institution originally designed to protect against prosecutorial abuse but since turned into an investigative tool. Through the grand jury, prosecutors can compel anyone to testify under oath. Anyone who refuses to testify can be sent to jail. A witness who lies can be prosecuted for perjury. The grand jury can also compel anyone with a record or tangible thing to produce it, irrespective of probable cause, again with the threat of jail time for those who refuse. Neither the Fourth nor the Fifth Amendments generally protect against the compelled disclosure of records. Witnesses before a grand jury are not entitled to have a lawyer with them in the room while they testify. In practice, the grand jury operates as the arm of the prosecutor who convenes it. While technically subject to the oversight of a judge, the prosecutor issues subpoenas without the prior approval of the judge. In fact, the subpoenas are often issued in blank to FBI agents, who fill them in to serve them, and collect the records.

The tremendous power of the grand jury is usually balanced by careful judicial review, by the protection guaranteed by the Confrontation Clause of the Constitution, and by the requirement that evidence not eventually used in open court be kept secret. Now, under the provisions of the Patriot Act, information gathered through grand jury hearings may be shared with the CIA and other intelligence agencies without prior judicial approval and without accounting for the ways in which information is eventually used or shared. Cole and Dempsey suggest that a better approach would require judicial approval before information can be shared with intelligence agencies. Given the potential harm that could arise from dissemination of the kind of unsubstantiated allegations that may emerge in grand jury proceedings, this seems like a modest suggestion.

According to Cole and Dempsey, the Patriot Act has had a major impact on judicial oversight of information-gathering activities. In brief, the Patriot Act vastly increases the powers of law enforcement and intelligence agencies and decreases judicial oversight and protection of the public.

Since the attacks of 9/11, many Americans seem untroubled by proposals to increase the power of law enforcement and intelligence agencies. Cole and Dempsey have not ignored this perspective. They acknowledge that some of the changes advocated by the law enforcement community have merit. They are concerned, however, that much of what has been done involves the sacrifice of liberties for government powers that cannot make America safer. In Terrorism and the Constitution, they argue that policies based on ethnic profiling, guilt by association, secret accusations and detention, coercive interrogation, and data mining have weakened confidence in government and raised serious civil rights issues at home while increasing anti-Americanism abroad. In spite of these changes in American law, and in spite of increases in the powers of law enforcement agencies, relatively few alleged terrorists have been successfully prosecuted since September 11. And most of those who have been prosecuted have not been accused of actual involvement in terrorism but of providing aid to proscribed organizations.

Does the American government now need special powers to fight terrorism, powers that were apparently not needed to fight the Cold War against international communism? Cole and Dempsey make the case that recent efforts to increase government power are not only unnecessary but, because they divert us from effective criminal investigations and may push more uncommitted Arabs and Muslims into the enemy camp, can actually be counterproductive. Their solution is simple: a return to a more traditional understanding of the rule of law, one that better balances civil rights and government power.

All antiterrorism investigations in the United States, whether of foreign or domestic groups, should be conducted pursuant to criminal rules, with the goals of arresting people who are planning, supporting, or carrying out violent activities and convicting them in a court of law. Law enforcement must stop framing terrorism investigations in political, religious, or ethnic terms. The FBI still classifies its investigations as “environmental terrorism” (“eco-terrorism”) or “Islamic fundamentalist terrorism” or “Puerto Rican terrorism.” This only reinforces the notion that the Bureau’s role is to monitor politics or to target its efforts based on religion or ethnicity rather than to investigate crime.

Should we, as Cole and Dempsey suggest, temper the current aggressive focus on crime control and security with more emphasis on constitutionally-guaranteed civil rights? It is difficult to imagine a more articulate or thoughtful critique of the recent tendencies than readers will find in this third edition of Terrorism and the Constitution. While not all readers are likely to agree that FBI investigations of terrorism be limited to cases where evidence that criminal behavior is found, many will perhaps concede that Cole and Dempsey have made a compelling case for the civil rights side of this debate—as good a case as one is likely to find anywhere today. A first-rate rejoinder, written by a proponent of the effective crime control position, would make great reading—if it is forthcoming. In this debate, Cole and Dempsey have set the bar high.

John Riley is an associate professor with the Justice Center.