Civil Liberties in Times of War
Dialogue from Slate.com
Note: This dialogue occurred within a week of the 9/11 attacks on the U.S.
Stewart Baker is head of the technology practice at Steptoe & Johnson, a former general counsel of the National Security Agency, and co-author of a book titledThe Limits of Trust: Cryptography, Governments, and Electronic Commerce.
Eugene Volokh teaches constitutional law at UCLA School of Law and is the author of a textbook on the First Amendment and many law review articles on rights questions. This week they discussspecific security technologies that the U.S. government might adopt in the wake of recent terrorist attacks, and their effect on civil liberties.
From: Stewart Baker
To: Eugene Volokh
Monday, Sept. 17, 2001, at 6:30 PM PT
Slate has asked Eugene Volokh and me for a dialogue on the civil liberties issues that arise from the events of last week. My heart's not in it.
Oh, I've got lots of views about these issues and plenty of experience arguing about them. In the early '90s, when I was the National Security Agency's general counsel, it was my job to argue for regulation of encryption, which can frustrate even sophisticated wiretaps (we lost), and my law practice includes a large component of wiretap, technology, and national security advice. It won't be hard to trot out my views.
And that's the problem. All the old arguments are fresh in my mouth. But playing them back in a different key feels somehow like forgetting, maybe even dishonoring, the dead. If, as all the reporters are saying, nothing will ever be the same again, the least we can do is not begin our dialogue with the same old questions.
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Instead, I'd like to begin by asking why this topic is so important that Slate and the rest of the press insist on discussing it now. The answer, I suppose, is that Slate thinks that wars are bad for civil liberties and that we need to be reminded not to sacrifice our freedoms in the war against terrorism.
But frankly, I don't hear a lot of calls for sacrificing civil liberties today. Anyone who's dug this deep into Slate has probably already seen roughly 20 warnings about the risk to civil liberties for every proposal they've heard that would significantly restrict our freedoms—unless you think that curbside check-in is enshrined somewhere in the Magna Carta (a position the ACLU's probably briefing at this moment).
Then why does Slate insist on spending this week looking for an Authoritarian Bogeyman Under the Bed? Well, if you'd asked Queen Victoria about the threats her society faced, she'd probably have worried aloud about a breakdown in sexual and other morality. Ask a Hollywood producer the same question, and he'll cite the threat of sex-hating moralists. Every age seems to warn itself most sternly about the risks that are least likely to do it harm.
So too with us. Defending civil liberties is at the heart of the baby-boomer self-image, a self-image that's been packaged and sold to adolescents ever since. However powerful and rich and snobbish we ex-teen-agers become, we still see ourselves as rebels fighting a lonely battle against overweening authority. To make that myth work, we need an overweening authority to battle—preferably one that can't fight back.
Intelligence agencies are perfect for that role. In practically every newspaper story about those agencies, it is understood that the bad guys are the ones invoking national security to keep secrets and protect intelligence sources. The reporters who ferret out those secrets and put them on the front page are the good guys, preventing intelligence abuses like CIA assassinations or monitoring of security risks inside the United States. Now, of course, even those abuses don't look quite as bad as they used to. And the cost of preventing them by publishing the details of intelligence operations looks a lot higher.
When I was in government and I read some press story about the foreign adversaries we were spying on, I knew our enemies would read the same story. They would go back through their communications to find the message we had intercepted. They would add encryption to the channel or get rid of the compromised equipment or execute the spy that gave us our insights. Sooner or later, we'd pay a price—a price that would never be known by the cheerily iconoclastic reporters, so proud of wresting their story from the heart of overweening authority or the climbing officials who tossed them the intelligence to curry their favor. It gave me a helpless sinking in my stomach—the same one we all felt last Tuesday.
The risk that worries me isn't that our leaders will suddenly embrace authoritarianism. It's that they'll keep leaking, and the press will keep reporting, and the terrorists will keep getting smarter. That we'll go on treating the Defense Department and the intelligence agencies the way Chicago's Near North Side treats its cops—expecting absolute protection while offering a mix of Christmas tips and genial contempt.
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So instead of spending the week looking for civil liberties threats in this crisis, I wish Slate and the rest of the press were reconsidering a quarter-century of press attacks on intelligence sources and methods.
Why isn't Slate running a dialogue on journalists whose Pulitzers should now be considered tainted because their stories may have compromised classified intelligence methods that we could have used against terrorists? Why not a dialogue on the need to create a code of ethics for national security reporters? The press gave Chelsea Clinton room to grow up normally by not running some stories. Now the right of a lot of other American kids to grow up with two parents, or at all, may depend on not running some national security stories.
Why aren't we debating when journalists should reveal the names of officials who compromise secret military plans? Sure, they'd be burning their sources. But in the light of recent events, what conceivable calculation makes protecting the Washington Post's sources more important than protecting the CIA's?
I don't think we need to change the classification laws or readjust the constitutional balance of the Pentagon Papers case. It's simpler and more difficult than that. We all need to feel that sinking feeling when we see stories based on intelligence leaks in the paper. The journalists who write them and the editors who edit them and the readers who read them should all wonder if the passing thrill is really worth the eventual cost.
And until journalists themselves begin that debate, I'm not sure they really mean it when they say that nothing will ever be the same again. I'm afraid that what they really mean is, "Nothing will ever be the same again. For you. For us, well, it's a hell of a story."
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OK, Eugene. Tomorrow, maybe we can talk about Carnivore and roving wiretaps and the latest Senate bill allowing emergency intercepts. For now, it looks like you'll have to make what you can of this.
From: Eugene Volokh
To: Stewart Baker
Tuesday, Sept. 18, 2001, at 12:00 AM PT
I confess I also enter into this discussion with misgivings. I've long bristled when people have talked about civil liberty, which is to say freedom from government oppression, as if it were the most important thing in life. And, yes, it can seem that way—when we are physically safe. But when our lives are in danger, we realize that we'd like to have both freedom from government oppression and freedom from oppression by others. Once we see that, it's pretty obvious that some trade-offs might be needed. And no one has a magic formula for how to make these trade-offs.
So not having any real answer to any really tough questions, let me just offer a few general thoughts:
1. This Isn't About "Civil Liberties in Wartime." The phrase suggests that we're somehow in a temporary Wartime that calls for temporary measures, which will vanish when we return to Peacetime. Well, Peacetime isn't going to happen.
In past wars, we could know when the war was over and peacetime rules could return. But say we kill Bin Laden; overthrow the Taliban, Saddam, and Qaddafi (just to pick some likely suspects); and blow up a bunch of terrorist training camps. Will this be the end of the war? Not by a long shot. There'll always be terrorists. There'll always be the risk of thousands of Americans being killed. We won't even know for sure when the risk has greatly diminished; we'd be fools to ever think it's been eliminated.
So the measures we adopt today—constitutional rules, statutes, and perhaps even media ethics principles—won't be temporary. They won't go away. This doesn't mean these measures are wrong; they may be good permanent measures to have. But let's not fool ourselves that we can have them just for a few months and then return to business as usual. This is going to be business as usual.
2. General Propositions Do Not Decide Concrete Cases. Justice Holmes said this a century ago, and he was right. Platitudes about how even "at a time of crisis … our freedoms should not be limited" or "it's pretty obvious that some trade-offs might be needed" (to quote myself) are at best tentative presumptions. They tell us very little about what to do about any particular proposal.
We all the time limit some freedoms in order to get some security—and we have to. Consider the constitutionally recognized power of the police to search even your home, if they have probable cause and a warrant. Consider airport X-ray searches. Consider the government's ability to arrest and detain alleged dangerous criminals, if probable cause is present, even before they are tried and convicted. Should we allow still more searches? More detentions? More speech restrictions? Fewer?
These questions can't be answered in the abstract. There must be a specific proposal on the table. We need to know what we're being asked to give up and what we're supposed to get in exchange. We need to think about whether the proposal will in fact make us safer. It's not that we must be pragmatists rather than idealists—it's that in a world where no ideal is absolute (certainly not the Fourth Amendment, for instance, which only bars unreasonable searches and seizures), we can't avoid this kind of pragmatic, concrete thinking.
3. Unintended Consequences. Finally, we have to remember an obvious but too easily forgotten point: Good intentions don't equal good effects. Disarming the public is intended to decrease armed violence; but there's good reason to think that this doesn't work. Arming airplane passengers, as some now suggest, is intended to facilitate armed resistance to terrorists; but there's good reason to think that this won't work, either.
Here is where I get to tie in to your excellent opening message, Stewart, which is probably 90 percent correct or perhaps even 100 percent. I agree entirely that newspapers' right to publish something doesn't necessarily mean that they should publish it. (By the way, as to rights, let me stress that it's perfectly constitutional to punish government officials for leaking secret material, and that reporters have no categorical First Amendment right to conceal the leaks' source.) My one concern, though—and it really is just a concern since I cannot claim to be an expert on the concrete facts (see above) about national security, the intelligence apparatus, and press reporting—is that press silence about intelligence matters may sometimes actually backfire.
Intelligence agencies, vital as they are to our survival, are subject to all the flaws of human institutions. They may err; and it's hard for the public to decide whether they've erred enough to need substantial reform unless the public is told the underlying facts. (For instance, did the intelligence agencies fail in this very situation, and, if so, what should we do to prevent such failures in the future?)
Intelligence agencies may become trapped by bureaucratic ossification and internal conventional wisdom, conditions that are exacerbated when no one outside the agencies can provide an alternative perspective. And there's also the inevitable temptation in policy debates to say, for the best of reasons, "Look, I have access to all this secret information that proves I'm right, so you need to trust me"—even if on close examination the secret information really wouldn't support the speaker's position. Voluntary, well-intentioned press silence about the actions of well-intentioned intelligence agencies may thus sometimes lead to worse intelligent-gathering capability rather than better.
I can't say this for certain; you spent years at the NSA and I didn't. I'm an expert on constitutional law, not on intelligence policy. I have no doubt that in many situations, perhaps most, press silence is the right answer. And perhaps, to anticipate one response, secrecy is so important to intelligence-gathering that the checks and balances must be provided solely by confidential congressional oversight committees—not by the press, the public, and the policy experts among the public. My goal here is just to raise a possible concern, not to resolve it.
So I hope that the press takes your advice very much to heart. Certainly they should think many times before publishing anything that might help terrorists. But at the same time, thequestion,"Who will guard the guardians?" (a question one might also ask about the press, but that I ask here about the intelligence community) remains. And we need to guard not just against "our leaders suddenly embracing authoritarianism," but against much more mundane failings as well—failings that unfortunately tend to thrive more in the absence of public scrutiny.
From: Stewart Baker
To: Eugene Volokh
Tuesday, Sept. 18, 2001, at 6:00 PM PT
Let's get down to specifics. Let's take a close look at the legal changes now under consideration and ask whether they pose any threat to civil liberties. As you say, we'd better like the laws we're passing. We'll be living with them a long time.