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A Decade of Lost Freedom

This weekend marks the tenth anniversary of the most lethal terrorist attack on American soil. OTB’s writers offer their thoughts on our progress.

Doug Mataconis:

For most people, the biggest change that has happened since September 11th, 2001 has been the extent to which, almost overnight, the United States has transformed into something resembling a Fortress Society. It’s hard to notice unless you live in New York or Washington, D.C., or if you fly on a frequent basis, but it’s still there and it’s far different from the way America used to be. As Kevin Drum notes, in his book CBS reporter Bob Schieffer is old enough to remember a far different time:

These days, friends are never really sure I’m serious when I tell them that the Pentagon, like most of official Washington, was still open to the public in the 1970s….No one was required to show identification to enter the building, nor were security passes required….During the time that Jim Schlesinger was secretary of defense, I would sometimes drop by on a Saturday morning, and if his door was open, I would stick my head in and ask if anything was going on.

Much of this openness ended long before September 2001, of course. If the international terrorism of the 1980s didn’t do it, then the Oklahoma City Bombing certainly did result in a dramatic increase in government building security. It wasn’t until after September 11th, though, that the average American would have been likely to notice much of it. Today, it would be impossible for a visitor to New York City, for example, to fail to notice the increased police presence in Midtown Manhattan or, depending on the state of the terror alerts, the police carrying automatic weapons and conducting random bag searches on the subways and commuter trains that New Yorkers rely on daily. In Washington, D.C., the presence of the security state is even more omnipresent:

Some things are obvious: the Capitol Hill police armed with assault rifles, standing on the Capitol steps; concrete barricades blocking the once-grand entrances to other federal buildings; the surface-to-air missile battery protecting the White House; the National Archives security guards, almost as old as the Declaration of Independence enshrined inside, slowly waving a magnetic wand over all who enter. But most of the post-9/11 security measures have simply been embedded in the landscape and culture of the nation’s capital.

From the reflecting pool at the foot of the Capitol to the reflecting pool in front of the Lincoln Memorial, government cameras take pictures of citizens, who smile for Big Brother and snap their own pictures of the government cameras. In the $561 million underground Capitol visitors center, completed in 2008, people clutching gallery passes from a senator’s or representative’s office are funneled through magnetometers, to witness a secure Congress in its sealed chambers.

This is far different from Washington I visited as a child thirty-odd years ago, when you could walk up the steps of the Capitol and pass maybe one or two Capitol Hill Police Officers and stand in line for one of the daily White House tours. Things started to change in the 1990s when Pennsylvania Avenue was closed, never to reopen to vehicle traffic again most likely, in response to the OKC attack. After September 11th, though, the security became both more pervasive and more invisible. Most importantly, though, now that these security measures are in place the likelihood is that they are here to stay.  It’s rare that security precautions get downgraded, and since we’re fighting a “War On Terror,” there will always be a risk of another attack that politicians can point to as a reason to keep all of it in place, including the intrusive TSA pat downs that persist despite the fact that everyone seems to dislike them.

In addition to the fortress society, though, we’ve also created a series of laws that have chipped away at civil liberties and fundamentally changed the criminal justice system and enhanced the power of police to act even when the focus of their investigation has nothing to do with terrorism:

Not all new tactics in combating terrorism in the United States were based on existing laws. “In electronic surveillance, you did have a big change,” said John C. Yoo, a law professor at the University of California, Berkeley, who became known for his aggressive legal advice and expansive view of executive power as a Justice Department official in the Bush administration.

In 2002, for instance, a special federal appeals court, the United States Foreign Intelligence Surveillance Court of Review, granted the Justice Department broad new powers to use wiretaps obtained for intelligence operations in criminal cases. “This revolutionizes our ability to investigate terrorists and prosecute terrorist acts,” Mr. Ashcroft said at the time.

After revelations concerning the warrantless wiretapping of international communications, Congress largely endorsed the program. Those legal changes, joined with striking advances in technology, have allowed the government broad ability to gather information.

“The Fourth Amendment has been seriously diluted,” said Professor Herman, who teaches at Brooklyn Law School. She added that she was struck by “the amount of surveillance that’s been unleashed with less and less judicial review and less and less individualized suspicion.”

The most extraordinary thing about the PATRIOT Act and other laws passed in the wake of 9/11, though, is the extent to which the powers it granted have expanded far beyond the investigation of terrorist threats to the American homeland. Consider, for example, the “sneak and peak” warrant, which allows police to enter a person’s home without their consent or knowledge and “look around” for evidence.” Prior to the PATRIOT Act, these warrants were not permitted for regular law enforcement and were generally reserved for investigation of cases involving foreign espionage. The advantages of such a warrant for police are rather obvious because they allow law enforcement to break into a persons home, seek evidence of a crime, and then obtain a regular search warrant based on what they saw during their surreptitious entry. During the three year period from 2006 to 2009, the number of “sneak and peak” warrants granted to law enforcement for drug investigations outnumbered those granted for terrorism investigations by a margin of more than 15-to-1. Other provisions of the Act have been used to gain access to bank accounts of Defendants in white collar fraud investigations and other routine crimes, thus allowing the police to collect evidence far easier, and with far less concern for civil liberties than they were able to do before the PATRIOT Act became law. For the most part, the Courts have accepted this, and the extent of the erosion of 4th Amendment rights over the past ten years cannot be understated.

In a new report (PDF), the ACLU documents other areas in which civil liberties have been impacted in ways we cannot even see by the Security State that has arisen since 2001:

Surveillance: The Obama administration, like the Bush administration before it, has used excessive secrecy to hide possibly unconstitutional surveillance….Hobbled by executive claims of secrecy, Senators Ron Wyden and Mark Udall have nevertheless warned their colleagues that the government is operating under a “reinterpretation” of the Patriot Act that is so broad that the public will be stunned and angered by its scope, and that the executive branch is engaging in dragnet surveillance in which “innocent Americans are getting swept up.”

Profiling: No area of American Muslim civil society was left untouched by discriminatory and illegitimate government action during the Bush years….To an alarming extent, the Obama administration has continued to embrace profiling as official government policy….There are increasing reports that the FBI is using Attorney General Ashcroft’s loosened profiling standards, together with broader authority to use paid informants, to conduct surveillance of American Muslims in case they might engage in wrongdoing.

Data mining: Nothing exemplifies the risks our national surveillance society poses to our privacy rights better than government “data mining.”….The range and number of these programs is breathtaking and their names Orwellian. Programs such as eGuardian, “Eagle Eyes,” “Patriot Reports,” and “See Something, Say Something” are now run by agencies including the Director of National Intelligence, the FBI, the Department of Defense, and the Department of Homeland Security….Without effective oversight, security agencies are now also engaged in a “land grab,” rushing into the legal vacuum to expand their monitoring powers far beyond anything seen in our history. Each of the over 300 million cell phones in the United States, for example, reveals its location to the mobile network carrier with ever-increasing accuracy, whenever it is turned on, and the Justice Department is aggressively using cell phones to monitor people’s location, claiming that it does not need a warrant.

There’s no denying that America still faces a threat from international terrorism, and that law enforcement, the military, and intelligence services need to act to protect our interests and our safety. At the same time, though, what we’ve seen over the past ten years is that the balance between liberty and safety has begun leaning far too much in the direction of safety and, as Benjamin Franklin once famously said, those who give up liberty to purchase a fleeting sense of safety don’t deserve either. My greatest fear is that we’ll see another terror attack some day in the future and see even more power granted to the state. Before that happens, we need to step back and ask ourselves whether the price we’ve paid over the past ten years was worth it.

James Joyner:  The obvious answer to “Are we less free than we were on 9/11?” is Yes. But Doug’s contribution points to how long the trendline of trading freedom for security has been. We’ve had a lot of incidents over the years and reacted to each of them by ratcheting up precautions. This, by definition, comes at the cost of marginal freedom.

While I don’t like it one bit, it simply makes no sense to treat the White House, the Capitol, or the Pentagon as if they were a shopping mall; there are too many nuts out there and the national impact of an incident there is too high.

We have, however, gone ridiculously overboard in some cases. Not allowing citizens to carry firearms into a federal courthouse is a reasonable and prudent response to real dangers; requiring us to hand over our smart phones, however, is high-handed–and has nothing to do with security. While having to undergo three separate security checks to tour the non-working parts of the White House seems a bit silly, it’s at least related to the value of the target; having to go through a magnetometer to get into the White House gift shop down the road is absurd.

Indeed, security is often used as an excuse for other things. For example, patdowns to get into sports stadia conveniently also serves as a way to make it harder for fans to bring in their own food and drinks, thus driving up the sales of $8 beer and $6 hot dogs.

I’m actually less concerned about the Big Brother issues that Doug points to than I am with the daily indignities and intrusions of security theater. Data mining, if enough safeguards and firewalls are in place, is minimally intrusive and potentially enormously useful in gathering intelligence to prevent terrorist attacks and provide real security. Adding to people’s daily burdens in order to provide the false illusion of security rubs elevates low-level functionaries above the citizenry in a way that should outrage the heirs of the Declaration of Independence.

Further, as Steven Levitt and Stephen Dubner point out in Super Freakonomics, suppressing freedom isn’t free:

Think about the last time you went through an airport security line and were forced to remove your shoes, shuffle through the metal detector in stocking feet, and then hobble about while gathering up your belongings.

The beauty of terrorism— if you’re a terrorist— is that you can succeed even by failing. We perform this shoe routine thanks to a bumbling British national named Richard Reid, who, even though he couldn’t ignite his shoe bomb, exacted a huge price. Let’s say it takes an average of one minute to remove and replace your shoes in the airport security line. In the United States alone, this procedure happens roughly 560 million times per year. Five hundred and sixty million minutes equals more than 1,065 years— which, divided by 77.8 years (the average U.S. life expectancy at birth), yields a total of nearly 14 person- lives. So even though Richard Reid failed to kill a single person, he levied a tax that is the time equivalent of 14 lives per year.

And, of course, a lot of people will choose to drive who would instead have flown, because the extra hour or so the enhanced “security” procedures have added to each leg of the flight have diminished the time savings and increased the hassle of flying. This has almost certainly killed far more people than we’ve saved over the past decade.

Dave Schuler

I don’t have a great deal to add to what Doug and James have noted above. IMO the greatest casualty of the last decade whether in addressing the War on Terror or coping with the collapse of the housing bubble is the rule of law. Far too many of the actions we’ve taken place too much power in the hands of unseen and unaccountable judges, bureaucrats, and committees.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. John Curran says:

    I remember being in Spain in 1975 when Franco was still alive & finding the Guardia Civilia, in their uniforms & odd patent leather caps, to be intimidating & so very old world. I saw French gendarmes in train stations with the capes on and realized that they had Uzi submachine guns over their backs & the cape was there to conceal the weapon. Police & customs officials were on the trains with you as you traveled.

    Now in the US, even in small towns, the police walk around wearing a lot of gear on big belts and look as intimidating as Franco’s men.

    Americans have always felt free to express themselves but people in security lines at airports keep pretty quiet about the indignities & the stupidity they encounter at the hands of the security state.

    We lost a lot on 9/11 but our nerve was the most important thing we let slip away.

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  2. Pete says:

    @John Curran: Yes, I visited Barcelona in the summer of ’71, driving down there with my brother from the French Riviera. We were pulled over by two policemen and treated like terrorists until I showed them my military ID. They then smiled and wished us a good trip. Later in Barcelona, we offered a young girl the back seat of our car as we were headed to Paris. She asked us to pick her up at a certain address in the morning. We obliged and when we arrived, the neighborhood was eerily quiet with soldiers lurking in the shadows, etc. She ran out of the building and implored us to leave immediately. She never explained why, but the whole thing was creepy. Never been through anything like that again.

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  3. Hey Norm says:

    Yet most of you allow Facebook huge amounts of access to your personal information so that you can have lots of “Friends”, and freely give the grocery store information so you can save $00.05 on Pop Tarts, and you let the State know where you are and how fast you are travelling so you can buzz thru the “FastLane”. And while I do not leave myself open to all that – there is the ubiquitous smart-phone, and the colosal amount of data they give to AT&T or whoever.
    Given all that we surrender freely – I have a hard time getting worked up about privacy or security issues.
    It’s also important to see the other side. We as a collective culture are much freer in many ways than we were in the 50’s and the 60’s and even the 70’s. Tell blacks, Jews, gays, and women that they are less free today than they were then. Indeed – that’s that’s the very reason why the white, well-off, suburban Teavangelicals want to take us back there.

    Like or Dislike: Thumb up 4 Thumb down 7

  4. @Hey Norm:

    (1) Facebook only has access to the information people give them

    (2) Facebook can’t put people in jail, tax them, or punish them

    (3) The only purpose Facebook collects that information is to sell people crap. If you don’t want to click on an ad, don’t click on an ad.

    There are significant differences.

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  5. Hey Norm says:

    Yup…and then there’s everything else I listed. It’s all small parts of the same big picture. I understand you are a libertarian and your panties get in a twist over this stuff. But I’d rather live today than before the Civil Rights Act…which is where your libetarian leaders…Rand Paul et al…want us.

    Like or Dislike: Thumb up 1 Thumb down 3

  6. James Joyner says:

    @Hey Norm: You’re making a non sequitur. If we rationalized our security procedures, Americans of all colors, genders, classes, and sexual orientations would be more free. Likewise, enhanced “security” did nothing to make racial and religious minorities more free.

    Like or Dislike: Thumb up 4 Thumb down 1

  7. Pete says:

    @Hey Norm:

    that’s that’s the very reason why the white, well-off, suburban Teavangelicals want to take us back there.

    Norm, I agree with you, except the swipe at the “Teavangelicals” comment. I know lots of Tea Party people and the evangelical portion is remarkably small. If all you do is listen to one side of the issue, you are no better than what you accuse them of being.

    Like or Dislike: Thumb up 5 Thumb down 2

  8. just me says:

    Raised security after 9-11 makes sense in some areas. I can totally see making it more difficult for just anyone to get into certain buildings or certain places.

    I think some stuff is just stupid and reactionary. The security procedures for air travel are pure dumb. Some make sense-it has always made sense to send carry on baggage through an x-ray and to have people walk through metal detectors.

    But taking shoes off and some of the other hassles just seem to make travel more miserable for travelers who just want to get from point A to point B.

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  9. OzarkHillbilly says:

    Unfortunately, so much of this increased security is just so much kabuki theatre, designed not to actually increase security (a point of diminishing returns was reached long ago) but to show that the gov’t was on the job. A couple years ago I was in Spain and flew into Madrid for a connecting flight the day after ETA blew up a parking garage at the airport. We had about 3 hours to make our flight and nervously watched the clock tick down 2 hours and 45 mins as we (and a few thousand others) went thru triple security check points… We barely made it.

    All in an effort to catch a couple of terrorists who, in all likelihood, were gone before the bomb blew up, and certainly weren’t hanging around the scene of the crime the next day.

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  10. Hey Norm says:

    @ Pete:
    I think you need to look at the statistics of who actually makes up the Tea Party.
    Here is an op-ed by a couple guys who have done research on the subject:
    http://www.nytimes.com/2011/08/17/opinion/crashing-the-tea-party.html?_r=2
    Take-away:

    “…Next to being a Republican, the strongest predictor of being a Tea Party supporter today was a desire, back in 2006, to see religion play a prominent role in politics. And Tea Partiers continue to hold these views: they seek “deeply religious” elected officials, approve of religious leaders’ engaging in politics and want religion brought into political debates. The Tea Party’s generals may say their overriding concern is a smaller government, but not their rank and file, who are more concerned about putting God in government…”

    Like or Dislike: Thumb up 2 Thumb down 2

  11. Hey Norm says:

    @ James:
    I don’t disagree…but Freedom and Liberty is about much more than the ability to walk into the White House gift shop without going through a metal-detector.
    Yes – OBL won because we willingly turned ourselves into a fortress society. OBL won because Bush and Cheney didn’t have the balls it takes to honor the Constitution, and Obama hasn’t done a damn thing to change it. I’m not happy about that.
    But while that was going on a lot of people got married to partners of the same sex…big brother may have tracked me on the way to a wedding via my smart-phone…but big brother couldn’t stop the spirit of the American people to be free.
    The worlds about give and take…ebb and flow. You give some there. You take some here.
    If you’re expecting nothing but advancement…well I hate to break it to you…

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  12. Ron Beasley says:

    Osama bin Laden may be dead but he died a winner. With the help of politicians in Washington and the US citizens themselves he accomplished what he set out to do – destroy the pre 911 USA. The economy has been destroyed by two wars fought on borrowed money. We now live in a “your papers please” society.

    Like or Dislike: Thumb up 5 Thumb down 1

  13. @Ron Beasley:

    I made much the same argument in the days after Osama Bin Laden died.

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  14. Ron Beasley says:

    @Doug Mataconis: I know you did Doug and so did I over at The Moderate Voice and Newshoggers. That said it’s a point that can’t be made to often. We did much of bin Laden’s work for him.

    Like or Dislike: Thumb up 3 Thumb down 1

  15. Jay says:

    @Hey Norm: Articles like the one you cite trouble me for the following reason…the subjects here (Tea Partiers) clearly stated their motivation, but since that reason (“gov is too large”) is (a) somewhat irrational, and (b) inconvenient/annoying, the Academic Left has searched relentlessly for the “real” reason why the TP exists..giving us things like your article. These types of analyses are not powered to prove that these people are, as you claim, reactionary, for example…unless the survey directly asks about a given topic (and even then, the conclusions would be suspicious…it’s hard to statistically prove a motivation via survey). Assuming the researchers have good data, we know that TP’s are racist, partisan, and religious. Any further inferences are inappropriate with this type of data, however intuitive those leaps may be.

    Like or Dislike: Thumb up 1 Thumb down 1

  16. ponce says:

    It’s clear that the people who founded America were far better people than those of us who occupy it today.

    Like or Dislike: Thumb up 3 Thumb down 2

  17. jan says:

    @Hey Norm:

    I think you need to look at the statistics of who actually makes up the Tea Party.

    …and, your ‘proof’ is an NYT opinion piece? Opinion piece = one’s opinion, and proof provided in such pieces are usually part and parcel a reflection of their ideology.

    @ponce:

    It’s clear that the people who founded America were far better people than those of us who occupy it today.

    I didn’t know you were that old to have lived in that era.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. OzarkHillbilly says:

    @jan:

    and, your ‘proof’ is an NYT opinion piece?

    And your proof is what? Norm cited something…. you have cited the void between your ears. Jan, if you can’t run with the big dogs, sit on the porch.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. OzarkHillbilly says:

    @jan:

    I didn’t know you were that old to have lived in that era.

    News flash, Jan???? You weren’t either.

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  20. Ben Wolf says:

    It’s clear that the people who founded America were far better people than those of us who occupy it today.

    I don’t know if they were necessarily better, but I think they were certainly greater. Greater in vision and imagination than those of us who live in these lesser days.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Ron Beasley says:

    @Ben Wolf: And don’t forget more honest!

    Like or Dislike: Thumb up 1 Thumb down 0

  22. An Interested Party says:

    And don’t forget more honest!

    Indeed, 3/5 of a person and all of that…

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  23. Rob in CT says:

    Fascinating. Doug makes a similar point to the one made by Paul Krugman (basically: we overreacted to 9/11 and did some bad things).

    I don’t know if the right-wing commentors simply missed this post, or saw it and found it unobjectionable (whereas Krugman is a horrible no-good leftist asshole for his post).

    Why? Possibly because Krugman, as usual, didn’t hesitate to point the finger at the people who pushed for the harmful policies we’ve pursued since 9/11, whereas Doug was content to tut-tut w/o assigning blame.

    The other differences I see are: Krugman mentions bad things we’ve done overseas (Iraq), whereas Doug focuses on domestic policy – things we’ve done to harm ourselves.

    Which reinforces the usual sad truth: we care a lot about marginal infringement on our freedoms. We don’t really give a shit if we bomb the hell out of a country & kill a host (exact # unknown) of people over there, all because we were pissed off and wanted someone to pay.

    Like or Dislike: Thumb up 1 Thumb down 0