Taking Liberties: The War on Terror and the Erosion of Democracy

Event & Context

• A Milken Institute panel discussion featured constitutional law experts Susan Herman (ACLU President, Brooklyn Law School) and John Eastman (Chapman University Law School) debating the post-9/11 erosion of civil liberties.
• The discussion centered on the USA Patriot Act, specifically its "prevention" paradigm shift from punishing crimes to preventing potential threats, and the expansion of surveillance powers under the Fourth Amendment.

Historical & Legal Frameworks

• Fourth Amendment Defaults: Herman identifies the pre-9/11 default as requiring (1) particularized suspicion/probable cause and (2) judicial review via a neutral magistrate before search or arrest.
• Pre-9/11 Erosion: By the 1990s, judicial exceptions to the Fourth Amendment (particularly regarding the War on Drugs) had already created significant "holes" in these protections before the Patriot Act.
• War vs. Crime Paradigm: Eastman argues that in wartime, the Fourth Amendment's "reasonableness" standard shifts, permitting fewer protections than in criminal contexts; he cites WWI censorship of letters as a historical precedent where no judicial warrant was expected.
• Constitutional Precedent: Eastman notes that Supreme Court precedent regarding German saboteurs (including a US citizen) establishes that citizenship does not automatically grant criminal trial rights if an individual is a combatant captured in enemy territory.

Patriot Act & Specific Provisions

• Passage Mechanics: The Patriot Act was passed six weeks after 9/11 with limited debate; it included 16 sunset provisions that largely became permanent after a four-year renewal.
• "Sneak-and-Peek" Warrants: The Act codified delayed-notice search warrants; Herman notes these are used overwhelmingly in drug cases rather than terrorism cases.
• Roving Wiretaps: Eastman contends roving wiretaps were already standard in drug enforcement, and the Patriot Act simply extended existing tools to terrorism investigations where they were most needed.
• Material Support Laws: Eastman points out that strict liability (no intent requirement) for material support crimes has existed in environmental and safety law since the 1970s.
• National Security Letters (NSLs): Both speakers acknowledge the existence of NSLs; Herman highlights the government's "mosaic theory" used to prevent the ACLU from even publicizing the lawsuit against them.

Effectiveness & "Security Theater"

• Ineffective Measures: Both speakers agree that certain measures, such as curbside baggage bans (which ignored the 9/11 modus operandi) and extensive airport shoe removal, function as "security theater" with little preventive impact.
• Surveillance Efficacy: Herman argues the 9/11 Commission noted a lack of evidence for the effectiveness of many Patriot Act provisions, citing an Inspector General report that found almost no intercepted terrorism cases directly resulting from NSA surveillance or NSLs.
• Bin Laden Succession: Eastman attributes the location of Osama bin Laden to the NSA surveillance program and enhanced interrogations (waterboarding), claiming these controversial tools yielded the critical intelligence.
• Fact Disputes: Herman counters that the direct causal link between NSA surveillance/waterboarding and bin Laden's death is factually contested, noting that waterboarding can elicit false information.
• Data Overload: Both agree the government is "drowning in data," collecting information on a massive scale (including cargo containers and digital records) without clear mechanisms to process or utilize it effectively.

Presidential Inertia & Political Dynamics

• Bipartisan Continuity: Eastman argues that President Obama's retention of Bush-era powers suggests legitimacy derived from shared intelligence briefings, not political opportunism.
• Political Calculation: Herman attributes the lack of policy rollback to political inertia; she argues it is politically impossible for a president to relinquish "tough on terror" powers without a guaranteed safety benefit.
• The "Dragnet" Instinct: Eastman suggests presidents inherently trust themselves not to abuse broad powers, a human instinct rather than a sign of venality.
• Judicial Restraint: Herman criticizes the Foreign Intelligence Surveillance Court (FISC) for approving over 99% of government applications, rendering judicial review a rubber stamp, though she argues the process itself serves as a necessary check.

Specific Case Studies: Anwar al-Awlaki & Guantanamo

• Drone Strikes: Herman opposes the targeted killing of US citizen Anwar al-Awlaki without judicial process, arguing it bypasses the Constitution's specific requirements for proving treason and due process.
• War Status: Eastman counters that al-Awlaki was an unlawful combatant in an ongoing war of existence, where the lack of uniforms and international law violations justifies being treated as a combatant rather than a criminal.
• Guantanamo Bay: Herman cites that a high percentage of detainees were released as mistakes after years of detention without trial, warning against dispensing with due process.
• Indefinite Detention: Eastman maintains that detaining combatants without criminal trials is consistent with historical war practices, though he acknowledges the indefinite nature of the "War on Terror" complicates this model.

Privacy, Technology, and Public Perception

• Data Aggregation: Herman warns that the government can buy data from private aggregators, and the lack of algorithmic precision means they cannot distinguish between reading a terrorist biography for study versus intent to attack.
• Kafka vs. Orwell: Herman characterizes the threat not as total surveillance (Orwell) but as arbitrary government power over citizens (Kafka) that chills free thought and association.
• Technological Shift: Eastman notes that private sector technology (e.g., cloud computing, GPS) has already reduced individual privacy, potentially justifying increased government access to similar data.
• Secrecy Justification: Eastman defends government secrecy as necessary to prevent enemies from adapting to US tactics, citing the 1942 Japanese code-breaking revelation.
• WikiLeaks: Eastman argues publishing classified information violates the Espionage Act; Herman acknowledges the need for some secrecy but expresses concern over the Obama administration's aggressive use of the Espionage Act against leakers.