“How much freedom are Americans willing to give up for safety from terrorists?” This question, posed by a January 2003 feature in USA Today newspaper, resides at the center of current debates about homeland security, debates that are proving long-lived. Indeed, more than a year after the September 11, 2001, terrorist attacks on America, the federal government’s stepped-up homeland security efforts are still a major focus of public discourse.
New homeland security measures encompass a wide variety of efforts to prevent terrorist attacks. They include both specific policies, such as random baggage searches at airports, and broader policy changes in intelligence-gathering and law enforcement, such as the reforms that the FBI and CIA have instituted since September 11. Whatever their scope, homeland security measures are evaluated by both policymakers and outside observers using two major criteria: their effectiveness in preventing terrorist attacks and the impact they have on the American public.
Security versus freedom
Homeland security measures often involve striking a balance between greater safety and infringements on civil liberties, such as invasions of privacy, discrimination, and other curtailments of individual freedom. As USA Today’s Gene Stephens explains, “We cannot truly be free unless we have a reasonable degree of safety, but we cannot truly feel safe unless we are also secure from undue prying into our personal lives.” Baggage searches at airports, for example, may deter potential hijackers, but they also invade the privacy of countless non-terrorists. Similarly, granting broader investigative powers to the FBI could help thwart future attacks but may also result in unwarranted government surveillance or harassment of many innocent people. Evaluating homeland security efforts thus becomes a question of trade-offs; security experts must decide to what degree civil liberties should be curtailed in order to strengthen homeland security.
While homeland security encompasses a vast array of efforts at the local, state, and national levels, three centerpieces of the federal government’s homeland security strategy have been intelligence gathering, intelligence sharing, and immigration control. The Bush administration’s efforts to improve the government’s capabilities in each of these three areas have been among the most controversial issues surrounding homeland security.
In the aftermath of September 11, a consensus quickly emerged that the tragedies were due in part to a breakdown in intelligence. Leaders from across the political spectrum questioned how al-Qaeda—a known terrorist network—had been able to plan and execute the September 11 attacks without attracting the attention of the CIA, the FBI, the National Security Agency (NSA), the Department of Defense, and other agencies charged with tracking terrorist threats. A key to preventing future attacks, it seemed, was to revitalize U.S. intelligence efforts.
To this end Congress passed, and President George W. Bush signed, the USA Patriot Act on October 26, 2001. The act gives new investigative powers to domestic law enforcement and international intelligence agencies. For example, it expands federal agents’ power to conduct telephone and e-mail surveillance of suspected terrorists—measures that have alarmed some civil libertarians and privacy advocates.
Controversy over the PATRIOT Act highlights a fundamental theme in homeland security debates: In general Americans want the government to use its power to investigate and avert terrorist threats, but at the same time they oppose the idea of a “police state” in which the government continuously monitors average people. The challenge facing the government, according to William Webster, former FBI director and CIA chief, is “getting as much information as possible without impairing the rights of privacy that Americans have always considered dear. Everyone has a right to question, ‘Why are they doing these things?’”
Related to, but distinct from, the challenge of intelligence gathering is the issue of intelligence sharing. Critics of the government’s counterterrorism measures have laid part of the blame for September 11 on a lack of communication between the FBI, CIA, and other federal agencies. According to this view, there were significant warning signs that, had they been heeded, could have averted the September 11 attacks. However, because of the compartmentalized nature of the U.S. intelligence apparatus, the various agencies charged with tracking terrorist threats were unable to recognize the warning signs because they were not communicating with one another. As former FBI agent David Major puts it, “If you don’t share intelligence, you don’t connect the dots.”
To better connect the “dots”—the countless bits of information gathered through separate intelligence operations—Congress passed the Homeland Security Act, which became law on November 25, 2002. The act created a new cabinet-level agency, the Department of Homeland Security (DHS), to coordinate homeland security efforts. The DHS incorporates twenty-two federal agencies, including the Immigration and Naturalization Service, Coast Guard, and the Border Patrol—but not the FBI or CIA—and constitutes the biggest reorganization in the federal government since the Department of Defense was created in 1947. One of the primary roles of the DHS is to collect and coordinate intelligence from the FBI, CIA, NSA, and other agencies so that they can more easily recognize patterns and threats.
From a civil libertarian point of view, the problem with intelligence sharing—as with intelligence gathering—is its potential for abuse. By its very nature intelligence gathering—or more colloquially, spying—involves invasions of privacy that run counter to the Fourth Amendment’s protection against unwarranted government searches. For this reason, spying has historically been justified as a tool of national security rather than law enforcement, to be used against foreign governments rather than U.S. citizens. Domestic law enforcement agencies, such as the FBI, who wish to conduct wiretaps or property searches in criminal investigations must obtain warrants and observe other rules of procedure that foreign intelligence agencies such as the CIA do not. The CIA, in turn, is prohibited from engaging in law enforcement or internal security functions. Many analysts worry that the DHS’s emphasis on intelligence sharing may serve to remove the prohibitions on domestic spying and erode the regulatory framework that governs the use of sensitive information gained through intelligence operations.
Many of the concerns over intelligence gathering and sharing, and homeland security measures in general, have to do with the how such measures might affect the general public, including immigrants. Indeed, the group of non-terrorists that has been most affected by homeland security measures is immigrants.
As a March 2003 report in the Economist notes:
In the months after the September 11th attacks, some 1,200 immigrants, mostly Muslims, were rounded up by the police and immigration officials across the country. Some of these were held for months before seeing a lawyer or being brought before an immigration judge. Most have since been released, some were deported, and only a few were charged with a crime. This practice seems to have continued, though the government has stopped reporting arrests.
The PATRIOT Act authorizes the U.S. attorney general to detain noncitizens without a hearing or proof that they have committed a crime. The rationale behind these measures is easy to see: All nineteen of the September 11 hijackers were Muslim immigrants, and they are believed to have received help from other al-Qaeda operatives living in the United States. Nevertheless, the mass arrests, and particularly the secrecy and lack of judicial oversight that surrounded them, outraged many civil libertarians.
Moreover, homeland security measures targeted at immigrants go beyond the investigation of the September 11 attacks. Due to the fact that all nineteen of the September 11 hijackers entered the country legally with visas (although several of the hijackers’ visas had expired), a major part of the government’s homeland security effort is to more thoroughly screen visa applicants in the future and track visa-holders while they are in the United States. Immigration itself has become a homeland security issue, as evidenced by the transfer of immigration control duties to the DHS. Civil libertarians warn that the government’s scrutiny of immigrants will lead to the harassment and investigation of Muslim Americans as well as Muslim immigrants.
Whether the topic is baggage checks at airports or the secret detainment of Arab immigrants, debates about homeland security often center on the balance between freedom and security. For many people, such as Uni- versity of Chicago Law School professor Richard A. Posner, civil liberties should be curtailed in order to strengthen homeland security. He writes:
If it is true . . . that the events of September 11 have revealed the United States to be in much greater jeopardy from international terrorism than had previously been believed . . . it stands to reason that our civil liberties will be curtailed. They should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty. All that can be reasonably asked of the responsible legislative and judicial officials is that they weigh the costs as carefully as the benefits.
Taking the opposite view are civil libertarians such as the Nation’s legal affairs correspondent David Cole, who argues that overly strong homeland security measures pose a greater threat to freedom than terrorism does:
It appears that the greatest threat to our freedoms is posed not by the terrorists themselves but by our own government’s response. . . . Administration supporters argue that the magnitude of the new threat requires a new paradigm. But so far we have seen only a repetition of the old paradigm— broad incursions on liberties, largely targeted at unpopular noncitizens and minorities, in the name of fighting a war. What is new is that this war has no end in sight, and only a vaguely defined enemy, so its incursions are likely to be permanent.
The viewpoints in At Issue: Homeland Security examine the government’s major homeland security measures, evaluating both their effectiveness and their social impact. The essays in this volume survey the views of politicians, military officials, law enforcement personnel, and constitutional scholars, who debate the best ways to ensure that America is both safe and free.