Freedom Vs. Security

I will always remember July 4, 2001, because a week earlier I became an American citizen. It was a different America one year ago. The country was bathed in peace and plenty, calmly contemplating a mild recession and a sinking stock market. But underneath the surface, Americans were searching for purpose. You could feel it in the insatiable appetite for tales of American heroes: Tom Brokaw's "Greatest Generation" books, the spate of best sellers about Washington, Jefferson and Adams, the resonance of John McCain's rhetoric. At the time, I thought that we should enjoy the peace and quiet, for it would not last. "You can't manufacture a great cause out of a sense of nostalgia for old ones," I wrote. "When America was threatened, as in World War II and the cold war, it rose to the task. And it will when the next crisis arises."

Well, here we are, one July 4 later. We have our crisis and our cause. We no longer need to read about heroes in history books; we have watched the firefighters and policemen of New York City court death to save strangers. We have heard the stories of the brave men and women of Flight 93. We have seen soldiers in Afghanistan risking their lives to rid us of danger. The United States has risen to the task, though many Americans are now wistful about those piping times of peace. As they should be. War tests a nation's character, but the goal of any civilized nation is to meet the test so as to make new ones unnecessary. John Adams said that he studied war and politics so that his sons could study navigation and commerce, so that their sons could study poetry and music.

For now we are all studying war. But it is a strange kind of war, without a country to fight against, without a conventional military struggle, without even a clear sense of how we will know we have won. The urgency of last fall has given way not to normalcy--we are too often interrupted by crises, warnings and arrests for that--but to uncertainty. No one knows how vast or puny the enemy is or how exactly we should fight him. Most of all, we don't know how to protect ourselves in this vast, free society. It is easy to imagine the worst. The summer blockbusters leave little to the imagination. In "The Sum of All Fears," a Baltimore stadium gets blown up during the Super Bowl by a dirty nuclear bomb. The movies then morph into the nightly news and we hear of the arrest of Jose Padilla, the man suspected of seeking just such a bomb. We watch Steven Spielberg's new movie, "Minority Report," in which a Department of Pre-Crime arrests Americans who are potential criminals. And then we remember that Padilla has been locked up, not for anything he has done that was illegal but for things he might have done--for pre-crimes. As far as we know, about 1,200 men rounded up by the Justice Department since September 11 who are being held--in some cases without bail, formal charges or legal counsel--are all guilty of pre-crimes. And yet, the government must act quickly and on sketchy evidence, or else it will be too late. The president has designated Padilla an "enemy combatant," and what he is suspected of is better thought of not as pre-crime but pre-war. In that sense, in America's intelligence agencies we have always had departments of pre-war. Only now they must operate at home.

On one matter there seems to be general agreement--September 11 changed everything. The United States has been attacked at home. The danger is ever present. The enemy is within.

But in fact the United States has had to deal with situations much like this one ever since its founding. In the late 1790s the fledgling American republic faced a mortal threat from France, which had launched an undeclared war at sea. In that climate, President John Adams signed the Alien and Sedition Acts, designed to make life difficult for French immigrants and for Adams's great rival, Thomas Jefferson, and his followers, whose pro-French views seemed treasonous in a time of crisis. These acts, parts of which were plainly unconstitutional, paled in comparison to what Abraham Lincoln did during the Civil War. Worried about Confederate saboteurs, Lincoln repeatedly suspended the right of due process. "Lincoln's attitude was, if anyone gives you trouble, arrest him and throw him into jail. It's that simple," says Civil War historian Shelby Foote. Or consider the Red Scare of 1919, which began with a series of terrorist bombings. In June 1919 senior government officials started receiving package bombs. By 1920 more bombs had damaged the facades of the New York Stock Exchange and the Morgan bank. The Justice Department's investigation, headed by the 24-year-old J. Edgar Hoover, capitalized on public fears. It arrested 4,000 people, broke up communist meetings and deported about 400 suspect aliens with little legal process.

The most recent example of dealing with enemies within is, of course, the early 1950s. While Joseph McCarthy's ghoulish tactics were repugnant, we now know from the Soviet archives that the Kremlin did maintain a spy network within the American government. Consider the times. In August 1949 the Soviet Union exploded an atomic bomb. Nuclear weapons were new, and many feared that the ideologues who ran the Kremlin and preached world revolution might use them. Then China, with a quarter of the world's population, fell to communism. The next year communist North Korea invaded South Korea. And during this period, Alger Hiss and Julius and Ethel Rosenberg were caught spying for the Soviet Union. This climate of fear resulted in congressional hearings, new laws, blacklists and vastly expanded powers for Hoover's FBI.

It's easy to dismiss that period as an overreaction to a limited threat. Compare it, however, with what we face today. Al Qaeda is a determined but ragtag bunch of Third World revolutionaries and nihilists, without a single country in the world that will openly house, feed and supply them. In the early 1950s the second most powerful country in the world, with nuclear weapons and dozens of major allies, was actively seeking to infiltrate America and its government.

We have been here before. America has a long history--some of it good, some bad--of trying to ensure the security of its citizens against mortal threats from within. Nothing in our present crisis suggests that we need throw away that history, those lessons or our fundamental belief that liberty can indeed be balanced with security. The question is how to do it this time.

Attorney General John Ashcroft often defends the expansion of his powers by reminding Americans that "we are at war." And he's right. The government should be given much leeway to deter and disrupt those who seek to kill Americans. But the greatest obstacle to fighting terror is not our freedom but government inefficiency. When the Department of Justice sends out one of its now routine terror alerts, they go to 18,000 law-enforcement agencies around the country. Have you ever wondered why we have 18,000 law-enforcement agencies? The crazy-quilt structure of American government, with local, state and federal authority, overlapping agencies and shared powers, is the single greatest threat to America's safety.

It's difficult to organize and reorganize government to meet this new challenge. It's easy to show resolve by rounding up foreigners, fingerprinting people and asserting new powers. Ashcroft has warned against even discussing violations of civil liberties, saying, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists." But who is the greater help to terrorists today, the American Civil Liberties Union or the National Rifle Association? The FBI is finding out all it can about the 1,200 people rounded up since September 11--except whether they have ever bought firearms. It's not that the government doesn't have that information, but the Justice Department will not share it because of an NRA-sponsored law that says that information about people buying guns--even illegal immigrants!--can never be shared with anyone. Ashcroft defends this policy. Perhaps someone should remind him that we are at war.

In a time of national crisis, we must trust the government. But trusting the government is not the same as trusting the executive branch. The USA PATRIOT Act, which gave the government most of its new powers after September 11, has bypassed and undermined the role of the courts in several key areas--eavesdropping, attorney-client privileges. But the founding theory of America is that no one branch should be trusted with exclusive powers. "If men were angels, " Madison wrote in the Federalist Papers, "no government would be necessary."

In 1945, as the cold war began, one could have made the case that America needed a much stronger central government. But after a 50-year cold war and the creation of a vast national-security establishment that spends hundreds of billions of dollars a year, it's difficult to argue that the executive branch doesn't have the muscle it needs. (What it needs is smarts.)

This push for unilateral power is the natural impulse of every president. In 1952, in the midst of the Korean War, Harry Truman determined that an upcoming steel strike would cripple America's war effort. He ordered the seizure of the steel mills, using his powers as commander in chief. The Supreme Court ruled, however, that the action was unconstitutional. Not because the government could not nationalize the steel industry. It could. But the executive branch could not do so unilaterally. Even in war, checks and balances were crucial. The conservative legal scholar Ruth Wedgwood argues that the executive should have to justify its designation of men like Padilla as "enemy combatants" to a panel of judges. Americans should not be arrested simply on John Ashcroft's say-so. This is not because Ashcroft is evil. It is because he is human.

The one area where America--government and people--has vastly improved on its past is in its treatment of a threatened minority during war. From the start, President Bush, New York's Mayor Rudolph Giuliani and almost all other national leaders sounded the call for tolerance and asked Americans not to vent their anger on people who were (or looked like) Arabs. There were many attacks on such people--by some counts, more than 400--but the government has been vigorous in prosecuting the offenders. A district attorney in Indiana told me that in one such case he was pressed by the federal government to ask for the most severe punishment possible to send a signal that such behavior was unacceptable. Considering the nature of the September 11 attacks and the size of this country, we should be proud that for the most part America lived up to its ideals.

One thing bothers some Americans: the airport searches. I have heard commentator after commentator angrily wonder why 80-year-old white women are being thoroughly searched while swarthy young men with exotic names walk freely onboard. "Stop those men," they thunder. Relax. As a swarthy young man with an exotic name, trust me, we're being checked. I don't know what the system is and how much discretion is allowed the security guards at the gates, but I've taken more than 50 flights all over the country since September 11, and I've been searched about 60 percent of the time. Either they are checking me out or I'm the unluckiest man alive.

What's more, I don't object to it. At least not on ethical grounds. If the pool of suspects is overwhelmingly of a particular ethnic/racial/religious group, then it only makes sense to pay greater attention to people of that background. But were this one factor to trigger a search, I'd be opposed, not on moral grounds but because it's stupid. Here the homeland-security crowd could learn something from local police. Racial profiling is less and less used by police departments, and not because it's increasingly being outlawed but rather because it doesn't work.

It's not that there isn't a racial profile that one could compose. After all, in most major American cities, young black and Latino men are still overwhelmingly the most likely perpetrators of many kinds of crime. But police forces have found that racial profiling doesn't work. David Harris, an authority on racial profiling who has interviewed hundreds of cops, explains that race is too broad a category to be useful. "Every cop will tell you what's important is suspicious behavior," Harris says. "If you focus on race, the eye is distracted from behavior and moves to what is literally skin deep." Customs Service agents have also learned this lesson. They used to stop blacks and Latinos at vastly disproportionate rates to whites. Then they switched and began using information and behavior as their criteria. They looked at where and how tickets were bought, did background checks, watched whether you stuck to your bags at all times. As a result, they searched fewer people and found twice as many blacks and whites, and five times as many Latinos, who were running drugs.

The key to the information revolution is that good information, properly used, is the most effective weapon any organization can have. Vincent Cannistraro, former head of counterterrorism at the CIA, explains that racial profiling is bad information. "It's a false lead. It may be intuitive to stereotype people, but profiling is too crude to be effective. I can't think of any examples where profiling has caught a terrorist." With this particular enemy, racial profiling would be pointless. Consider the four most famous accused terrorists in custody today: John Walker Lindh, a white American; Zacarias Moussaoui, an African with a French passport; Richard Reid, a half-West Indian, half-Englishman with a British passport; Jose Padilla, a Hispanic American. They are all Muslim, but that broadens the category to the point of uselessness. There are 1.2 billion Muslims in the world, and even in the United States there are several million. "If you're looking for a needle in a haystack, adding hay isn't going to help," says the Arab-American activist James Zogby.

What we need is not profiling but smart profiling. Stephen Flynn of the Council on Foreign Relations is among the leading homeland-security experts in the country. Flynn argues that you start with reverse profiling. People who are low risk should be "precleared." When you buy your ticket, the airline asks the FBI to run your name through its database. If you come out clean, you go through a "green line." That way the inspections process can focus on the much smaller group of people about whom the government has either suspicions or too little information--the "red line." (Every one of the September 11 hijackers would have had to go through such a red line had it been in place.) "That narrows the field," says Flynn, "not in a dumb way as race or religion would, but in a smart way." Flynn argues that above all else, interrogation and intuition are what works. "The Feds need to be able to observe and talk to the small number of suspicious people rather than doing broad or random searches," he says. "Behavior is usually the giveaway, in terrorism as in crime."

Overly broad, ethnically based profiling has one other practical problem. It hurts the government's ability to form good relations with these groups, get information and recruit double agents. If there are Qaeda sympathizers within the American Arab or Muslim communities--and there surely are--the best way to find out is to gain allies within the communities. That's why Cannistraro believes the FBI's decision to round up 5,000 Arabs for questioning is "counterproductive. It alienates the very community whose cooperation you need to get good intelligence." And consider how some of these interrogations take place. An Arab artist living in Brooklyn--who asked that his name be withheld--was taken in for questioning by two FBI agents. He was put in a lower-Manhattan cell where guards told him to shut up and an FBI agent muttered, "They'll let any of you sorry motherf---ers in this country now?" Two agents interrogated him for three hours and then threw him in jail for the night. After being given a Snickers bar for dinner, he slept on a concrete floor with two other Arab-immigrant men. In the morning they informed him that they now "liked him," and asked if he would like to join the FBI's fight against terrorism and help translate during other interviews such as the one he went through. Guess what: he declined.

Unlike many European countries where immigrants live a bitter, resentful life outside the mainstream, in America new minorities have tended to integrate into the broader community. There are doubtless elements within Muslim or Arab communities here that are sympathetic to Al Qaeda. But finding out who they are requires gaining the trust of the vast majority who are in America because they want the American dream.

In 1942, eight Nazi agents--all German-Americans or Germans who had lived in the United States for long stretches--landed on New York's Long Island with instructions to destroy American power plants, factories and bridges. They were captured by the FBI, President Roosevelt declared them enemy combatants and they were tried and convicted by a military tribunal. This case--Ex parte Quirin--is the model often cited to explain how we should fight the war on terror bluntly and robustly. But it leaves out one part of the story. The FBI had no idea that these men had landed and knew nothing of their plans. The terrorists were discovered only because one of the eight men was an American patriot. He had set off on the mission with the intention of divulging the plot to the authorities. America must change a great deal as it fights this new and strange war on terror. But let us ensure it always remains the kind of country for which people will make such sacrifices.