THE BUSH ADMINISTRATION is incessantly criticized, and not only from the left, for a variety of safety measures it introduced in the wake of the 2001 terrorist attacks. Senator Patrick Leahy, for example, said in November 2001, "We don't protect ourselves by bending or even shredding our Constitution." And a New York Times editorial the same month claimed that the president "is eroding the very values and principles he seeks to protect, including the rule of law." Almost daily, someone bemoans the "death of privacy" or the rise of the "surveillance society."
The administration has chosen not to respond to most of these allegations, and when it has responded, it has tended to be tone deaf. And whatever one thinks about mining private data banks to identify suspicious patterns of activity, calling a program designed to do this Total Information Awareness (TIA) only played into the critics' hands.
A careful examination of the new homeland-protection policies finds that they are not all cut from one constitutional, legal, or ethical cloth. Many were overdue when they were finally enacted in the wake of 9/11; several others are also quite reasonable; a few raise troubling questions; and at least one useful innovation the administration has yet to adopt.
Before any Cook's tour of the major new measures can begin, a few general points are in order. The key question is often framed as: How far should we be willing to sacrifice our individual rights in order to enhance our safety? But it's a mistake to think of homeland security as a zero sum game, where 100 percent of the turf belongs to rights, and every new safety measure amounts to an intrusion to be justified. To realize how prejudicial this approach is, ask the opposite, equally loaded, question: How far should we be willing to sacrifice our security in order to enhance our rights?
At the heart of the matter is the observation that under the Constitution, no right is absolute. Indeed, protecting the public interest--especially the public safety--is as legitimate as protecting individual rights. Thus, the Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." That is, the Fourth Amendment recognizes that some searches are reasonable--those deemed to serve a compelling public interest. They do not violate anyone's rights, because the Constitution never gave anyone an absolute right not to be searched.
There is a considerable legal literature about what is "reasonable," with many differences of opinion. By and large, it comes down to an admittedly vague notion: what a reasonable person would consider reasonable. One thing, however, is not in doubt: Much of what was unreasonable before 9/11 ceased to be so that morning.
MEASURES THAT WERE OVERDUE. Many of the new safety measures simply bring the law into line with technological developments. These should have been introduced years ago. The most important of these changes involve the Foreign Intelligence Surveillance Act (FISA), enacted in the faraway days of 1978. FISA provides guidelines under which a federal agent can obtain authorization to conduct surveillance for "foreign intelligence purposes." These purposes include protecting Americans from acts of foreign powers, occurring within the United States, or their agents (such as terrorists), whether foreign or American. A major tool of surveillance is the wiretap.
Historically, a wiretap was authorized for a given phone, usually the phone in the suspect's home or office. In recent decades, people have acquired multiple phones, cell phones, and e-mail, but federal officials conducting surveillance under FISA could not follow a suspect as he moved from one instrument to another--not without a separate court order for each communication device. The USA Patriot Act, enacted in October 2001, amended FISA to allow "roving surveillance authority," making it legal for agents to follow the suspect whatever instrument he uses.
Unless you believe that terrorists are entitled to benefit from new technologies but law enforcement must not catch up, this measure is entirely reasonable. Moreover, the critics' claim that surveillance orders are promiscuously granted simply doesn't stand up. Nearly 40 million foreigners visit the United States each year, according to the Commerce Department, yet the FISA court issued little more than 1,000 surveillance orders in 2002--after 9/11-- Attorney General Ashcroft reported to the Senate Judiciary Committee in March 2003.