What Will 9-11 Mean?

Commentary by J. Bradley Jansen

March 27, 2002

As we take time to look back at the shocking tragedies of six months ago and
reflect, we should also take the time to look both farther back in history and
also to our future. The day after the attack, Paul Weyrich explained in his
commentary, “The truth is that if we further emasculate our Constitution, the
terrorists will have achieved the greatest victory imaginable. Their triumph won't
just be the thousands of people they killed, the triumph will be if they see our
democratic institutions crumble.”

In response to times of terrorism and war, there is a debate between the false
choice of privacy versus security. The dichotomy is false because we deserve both
privacy and security. This country was founded on those ideals, and they were
enshrined in our Constitution. Our Founding Fathers were right.

The irresponsible approach of spying on everyone all the time instead of focusing
resources on the real threats to our country only leaves us both vulnerable and
violated. No one doubts the magnitude of the failure of our intelligence to
prevent what we are suffering now. Tens of billions of dollars a year were wasted.
Shallow calls for us to sacrifice our privacy for exaggerated versions of the same
policies that failed to protect us in the first place are a canard to divert
attention from the obvious failure.

Of course, in the real world outside of sound bites and political demagoguery,
things are not so simple. Congress was right to respond—and respond quickly—to the
intelligence failure. The more complicated question is whether the response
itself, the USA PATRIOT Act, was appropriate. As with most legislative and
regulatory initiatives, the devil is in the details.

For this reason, we need to go back and look at history. Pearl Harbor was the last
time this country was attacked. The government responded with a series of curfew
orders and Executive Orders that were ostensibly enacted to protect against
espionage and sabotage. With such a justification, many supported the claim. So
did the Supreme Court in Hirabayashi v. United States, Yasui v. United States, and
most famously Korematsu v. United States. While everyone might agree that the
country needs to act to protect itself from espionage and sabotage, nearly all
agree that the Japanese internment camps went too far.

It is also clear that law enforcement and others use times of crises (real and
exaggerated) to try to get their long-held wish lists. In the case of the
exclusion orders of the Japanese from the coast, it had less to do with military
necessity than the anti-Japanese sentiment on the West Coast. Widespread and
persistent criticism of these episodes eventually resulted in the vacating of the
defendants' convictions in the Korematsu and Hirabayashi cases and the enactment
of the Civil Liberties Act of 1988.

Another more recent example gives us pause. In response to the Oklahoma City
bombing, Congress also responded with sweeping new powers for law enforcement such
as the Antiterrorism and Effective Death Penalty Act of 1996. Again, the pendulum
swung too far. This time at least the Supreme Court (perhaps still smarting from
WWII criticism) stood up for our rights a few times such as in INS v. Aguirre-
Aguirre (1999) and reigned in some of the anti-terrorism excesses.

Nearly all of the USA PATRIOT Act language was recycled from previous bills and
other legislative proposals that had been debated and rejected. Unfortunately,
many parts of it had little or nothing to do with protecting us from terrorism but
represented long-held wish lists. During the previous Congressional debates over
many of these provisions, law enforcement did not raise the importance of anti-
terrorism to the initiatives.

The anti-money laundering provisions for example had been aimed at thwarting
official corruption, drug profitability and tax evasion. Their merits and demerits
had been widely debated in Congressional and other public events. Congress
considered the costs to outweigh the benefits. The case that these provisions, if
they had been adopted earlier, would have prevented the events of 9-11 has not
been made.

Law enforcement even had the chutzpah to add so-called “bulk case smuggling”
provisions into the proposal. These sections are a blatant attempt to circumvent
both Congressional attempts to curb civil asset forfeiture abuses by law
enforcement and Supreme Court chastisement such as decision United States v.
Bajakajian.

Many of the anti-money laundering suggestions came from the Financial Action Task
Force. This organization is more concerned with helping its sister organization,
the OECD, stamp out “harmful tax competition” (considering the tax implications in
one's decision making—no, I am not making this up) than protecting us from real
threats. Most of the countries targeted for a blacklist by the FATF have little to
do with the campaign against terrorism and many of the countries where terrorist
money is seized were not targeted by the FATF.

Right now, as a result of the USA PATRIOT Act, the government is dotting the final
I's and crossing the final T's with regulations to implement Congressional intent.
Let's make sure the devil stays out of the details and redirect our guns to the
appropriate targets.

J. Bradley Jansen is the Deputy Director of the Center for Technology Policy at
the Free Congress Foundation.