Century Foundation Report: Civil Liberties Restrictions Since 9/11 are Often Counterproductive or Irrelevant to Anti-Terror Effort

8/21/2002

From: Christy Hicks of The Century Foundation, 212-452-7723 or hicks@tcf.org

NEW YORK, Aug. 21 -- In the wake of last year's terrorist attacks, Americans unwittingly have allowed the federal government to expand its surveillance powers in routine matters unrelated to terrorism and have given up more freedom than is necessary to have the security we desire. At the same time, inexplicably, we have failed to assess the causes of the intelligence failures leading up to September 11 and thus have failed to assure that the steps being taken will address security problems that really matter. So says New York University Law Professor Stephen J. Schulhofer in a report to be released next month by The Century Foundation.

In his report, "The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11", Schulhofer describes how the federal government, in the name of fighting a war on terrorism, has acquired comprehensive and wide-ranging new powers. He details how, to a degree not yet widely appreciated, the executive branch now can detain citizens without charge, restrict public hearings and access to counsel, conduct secret searches, spy electronically, and obtain access to previously confidential financial, business, and educational files. He stresses that to an extent that has received virtually no attention, many of these new powers are not limited to terrorism cases and do not require suspicion of any kind that the person subjected to the probe is involved in criminal activity. And often, he notes, these new powers can be exercised unilaterally, without the supervisory control and judicial oversight that were taken for granted until September 11. In many instances, traditional checks and balances have been obliterated entirely.

Schulhofer believes that many of the steps, though unusual, reflect legitimate concerns and the elusive nature of the terrorist threat. He says, however, that too often the justifications offered are disturbingly thin and, in some cases, transparently inadequate. He believes that in some cases the new restrictions, such as those that interfere with private conversations between detainees and their lawyers, can end up hampering -- rather than advancing -- the government's antiterrorist efforts.

In addition, Schulhofer takes issue with Bush administration claims that its actions affecting civil liberties should be exempt from judicial oversight and public scrutiny because we are at war. Schulhofer acknowledges that throughout our history, the judiciary has hesitated to second-guess wartime executive branch actions. But, he notes, in previous national emergencies, judges were not willing to grant unlimited deference to judgments of the president and the attorney general. From the Civil War through World War II and the Korean and Vietnam Wars, the courts intervened many times to strike down administration initiatives that had been defended as crucial for assuring national security and military success.

Schulhofer believes that legislators and the media have paid too little attention to the historical record when reporting on and debating the administration's claims about civil liberties in time of war. He says that contrary to the current conventional wisdom, critical appraisal of new limits on liberty was considered normal in previous wartime situations. And, he believes that such oversight is long overdue now.

Stephen J. Schulhofer voices concerns that are too often missing from the public debate about homeland security versus civil liberties. He believes that to keep the nation strong we must -- and can -- pay attention to both. He further believes that a strong system of checks and balances enhances, rather than threatens, national security.

He is available for interviews and discussions about these and other issues pertaining to civil liberties and the war on terrorism.

His report, The Enemy Within will be published September 5. It is part of The Century Foundation Project on Homeland Security, which was created to help formulate coherent and comprehensive approaches to homeland security challenges. The Homeland Security Project is composed of three working groups: The Federal Response; Federalism Challenges; and The Public's Need to Know. The project is cochaired by Tom Kean, former New Jersey governor and current Drew University president, and Richard Celeste, former Ohio governor and incoming president of Colorado College.

To receive more information or to schedule an interview, contact Christy Hicks at 212-452-7723 or Maureen Farrell at 212-452-7741. For more information about the Homeland Security Project, visit http://www.homelandsec.org.

------ The Century Foundation is a research foundation that undertakes timely, critical, and analytical studies of major economic, political, and social institutions and issues. Nonprofit and nonpartisan, TCF was founded in 1919 and endowed by Edward A. Filene.