by David Crary source: AP Dec 4, 2011
In the early months after the 9/11 terror attacks, America’s visceral reaction was to gird for a relentless, whatever-it-takes quest to punish those responsible and prevent any recurrences.
To a striking extent, those goals have been achieved. Yet over the years, Americans have also learned about trade-offs, about decisions and practices that placed national security on a higher plane than civil liberties and, in the view of some, above the rule of law.
* * * * *It’s by no means the first time in U.S. history that security concerns spawned tactics that, when brought to light, troubled Americans. But the past decade has been notable, even in historical context, for the scope and durability of boundary-pushing practices.
Abroad, there were secret prisons and renditions of terror suspects, the use of waterboarding and other interrogation techniques that critics denounced as torture, and the egregious abuse of detainees by U.S. military personnel at Iraq’s Abu Ghraib prison and elsewhere.
At home, there has been widespread warrantless wiretapping authorized by the National Security Agency and the issuance of more than 200,000 national security letters ordering an array of Americans — including business owners and librarians — to turn over confidential records.
Now, in the very city that suffered most on 9/11, new information has emerged about the New York Police Department’s intelligence operations — ramped up after the attacks in ways that critics say amount to racial and ethnic profiling, though the department denies that charge.
Since August, an Associated Press investigation has revealed a vast NYPD intelligence-collecting effort targeting the city’s Muslims. The CIA helped develop some of the programs.
The FBI also has intelligence-gathering operations that target Muslim and other ethnic communities. Both the bureau and the NYPD defend the programs as conforming to guidelines on profiling, while critics brand the tactics as unconstitutional and ineffective.
“Targeting entire communities for investigation based on erroneous stereotypes produces flawed intelligence,” says Michael German, a former FBI agent who’s now senior policy counsel for the American Civil Liberties Union. “Law-enforcement programs based on evidence and facts are effective, and a system of bias and mass suspicion is not.”
The FBI, which in 2003 was authorized to conduct racial and ethnic profiling in national security investigations, says its community assessments are legal and vital. “Certain terrorist and criminal groups are comprised of persons primarily from a particular ethnic or geographic community, which must be taken into account when trying to determine if there are threats to the United States,” the bureau said in response to ACLU criticism.
But some feel the perpetual safety-vs.-civil-liberties balancing act has been knocked askew since 9/11. In a recent assessment of national security response to the terror attacks, the ACLU faulted policies it said had undermined the Constitution.
“We lost our way when, instead of addressing the challenge of terrorism consistent with our values, our government chose the path of torture and targeted killing … of warrantless government spying and the entrenchment of a national surveillance state,” its report said. “That is not who we are, or who we want to be.”
Nationally, civil-liberties advocates have taken numerous legal steps, including lawsuits, to challenge some of the federal surveillance practices or find out more about their scope. In New York, some elected officials are calling for federal and state investigations of the NYPD spying on Muslim neighborhoods.
* * * * *Yet top politicians — including President Barack Obama and New York Mayor Michael Bloomberg — are reluctant to criticize homeland-security operations.
“I believe we should do what we have to do to keep us safe. And we have to be consistent with the Constitution and with people’s rights,” Bloomberg said ahead of the 10th-anniversary commemorations of 9/11.
Many Americans seem to agree. According to a poll in September by The Associated Press-NORC Center for Public Affairs Research, two-thirds of Americans say it’s fitting to sacrifice some privacy and freedoms to oppose terrorism.
Tim Lynch, head of the libertarian-leaning Cato Institute’s Project on Criminal Justice and an expert on civil liberties, says most Americans are unaware of the extent to which basic liberties are being undermined by new, security-motivated legal precedents.
“The average person only comes face-to-face with some of these policies at the airport,” he said.
“But those of us trained in the law are alarmed,” Lynch said. “Lawmakers are too willing to pass laws that would give more power to the FBI and the executive branch.”
Such a law, critics say, was the sweeping Patriot Act, which was swiftly drafted after the Sept. 11 attacks and signed into law on Oct. 26, 2001. Among its provisions, it allows government agents to conduct broad searches for records in national security investigations without court warrants.