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Civil liberties are always early and intended casualties of wars—both actual or metaphoric. The war on crime targeted the due-process rights of criminal suspects. The war on drugs eroded everyone’s right to privacy and freedom from warrantless searches. The war on pornography attacked the First Amendment, condemned by censors left and right as an instrument of abuse. Freedom always needs defending from warriors against some scourge or other. Confronted with violence and vice or social revolutions, Americans are often tempted to let order ring.
Only a minority of people are likely to resist that temptation today. Ninety percent of people surveyed by the Washington Post in November 2001 supported the summary post–9/11 detentions of noncitizens. 59 percent of survey respondents favored the use of military tribunals for noncitizens suspected of terrorism. You can condemn this disregard for the rights of noncitizens as selfish survivalism: “I’m a white, middle class housewife; they’re not going to arrest me. Why should I care about the detainees,” one woman recently explained to me. Or you can sympathize with the wishful faith in law enforcement that general support for the administration’s antiterrorism initiatives reflects. People desperately need to believe that intelligence and law enforcement agents know what they’re doing, and if they know what they’re doing, then surely they’re detaining only people who ought to be detained.
Fear of terrorism will not diminish soon (given the likelihood of more attacks, or random shootings, we can depend on fear increasing), so the administration can expect continued public support for crackdowns on liberty. Noncitizens are easily targeted, of course, but many Americans are already willing to tolerate restrictions on the rights of citizens. Over sixty percent of people surveyed in a 2001 NPR/Kaiser/Kennedy School poll said that someone who blames terrorism on American behavior abroad should not be allowed to work in government or teach in public schools. More than one-third of respondents favored censoring stories criticizing the president’s conduct of military actions. But you don’t have to examine public attitudes immediately after 9/11 to find evidence of antilibertarianism in American culture. Repressive law enforcement practices are nothing new. African-American citizens were subject to racial profiling for years before many people outside the African-American community began to object, or even notice.
Of course, racial profiling is a less grievous violation of liberty than secret summary detentions, and its effects are easier to minimize. (Public support for profiling has rested partly on the callous notion that it’s a mere inconvenience.) There is some evidence that while Americans overlook the injustices of racial profiling, they do care about the rights of citizens not to be disappeared by their government: In response to a question about the summary detention of alleged dirty-bomber-wannabe Jose Padilla, 58 percent of respondents to a 2002 NPR/Kaiser Foundation/Kennedy School poll agreed that “all American citizens are entitled to be represented by a lawyer and have their day in court.” 44 percent of survey respondents agreed generally that “it’s more important to ensure people’s constitutional rights, even if it means that some suspected terrorists are never found.”
This rhetorical support for liberty is heartening; but it’s not reflected in the public’s apparent willingness to trust the Bush administration and allow its expansions of federal law enforcement power to go unchallenged. The conflict between professed concern for liberty and support for repression is explained partly by fear of terrorism and partly by ignorance and misinformation. The administration demanded quick passage of the Patriot Act, for example, branding opposition to it as practically treasonous, insisting that it was essential in the fight against terrorism. How many Americans knew then or know today that the Patriot Act applies to ordinary criminal investigations as well as suspected terrorist activity? How many understand that the Act imperils their own privacy by allowing the FBI to conduct secret searches of library and bookstore records? How many realize that its broad definition of terrorism can be applied by the attorney general to the activities of domestic political protest groups? How many would care, so long as they felt protected?
People can, of course, obtain information about the terms of the Patriot Act from various civil liberties groups, but they cannot learn much about its use: the administration has refused to provide even the House Judiciary Committee, as well as private advocacy groups, with much information about enforcement of the Patriot Act. The Justice Department has withheld simple statistical data, such as the mere number of American citizens who have been subject to secret surveillance.
There is little public outcry about this secrecy, partly because show-downs between Congress and the White House are readily dismissed as turf battles (never mind that our democracy relies on turf battles, or a system of checks and balances) and partly because many people are willing to sacrifice even their own privacy (if not their rights to due process) for the promise of protection. They trust the administration to act in secret to prevent terrorism. “If you have nothing to hide, you have nothing to fear.” That’s the emerging mantra of our surveillance state. Secrecy itself creates more trust, by concealing the administration’s failures and mistakes. As long as information about post–9/11 detentions is withheld, the public won’t learn about their abuses or their possible irrelevance to a fight against terror.
The challenge for the administration is to keep people fearful enough to continue vesting blind faith in the president but not so fearful that they’ll begin wondering about his ability to protect them. People will tolerate repression, of citizens and non-citizens alike, so long as they believe it’s enhancing their security. What they won’t tolerate is incompetence. These days liberty may be best protected not by appeals to morality or even a selfish affection for freedom but by revelations of intelligence and law enforcement failures before 9/11 and continuing inattention to domestic security today. Airport security has, perhaps, been minimally improved, but the security of the nation’s ports, trucks, and railroads has been largely ignored; so has preparedness for bioterrorism. If 9/11 was a wake-up call, the Bush administration has hit the snooze button. That’s the simple message people need to hear before they’ll stand up for liberty.
As politically tempting as the trade-off of immigrants’ liberties for our security may appear, we should resist it for reasons of principle, pragmatism, and self-interest.
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