Civil Liberties Keep Americans Safe

Politicians who want to violate civil rights to combat terror miss a vital point—if they strip them away, they’ll be equally defenseless.

Kevin Lamarque / Reuters

After the September 11 attacks, the U.S. government changed its domestic policies in a lot of ways that did little to keep its residents safer from terrorism, even as it infringed on civil liberties and weakened basic protections against government abuses. Air travelers endured years taking off their shoes and throwing away their water bottles at the behest of an incompetent TSA bureaucracy that still misses most guns. The NYPD sent undercover officers to profile Muslim American students, even going on a river rafting trip to spy on them, only to generate zero leads. The NSA built a domestic system of mass surveillance that affects all U.S. residents.

There is no evidence that any of it made Americans safer.

The nightclub massacre in Orlando, Florida, has prompted renewed calls from prominent figures for new infringements on the civil liberties of law-abiding American citizens and residents. Their suggestions would do little if anything to keep anyone safer, and would assist jihadists in further chipping away at freedoms and protections against government abuses. For these reasons and more, their alarmist responses to Sunday’s attack should be rebuked by cooler heads.

Former Speaker of the House Newt Gingrich reacted to the attacks with the suggestion that Congress revive HUAC, the infamous House Un-American Activities Committee. “We originally created the House Un-American Activities Committee to go after Nazis,” he explained. “We passed several laws in 1938 and 1939 to go after Nazis. And we made it illegal to help the Nazis. We're going to have to take similar steps here.”

It is, of course, already illegal to help ISIS, al-Qaeda, or any other terrorist organization. And Gingrich made sure to note that the committee was created to go after Nazis because it is most associated with the role it later played during America’s second Red Scare, when grandstanding politicians ruined the lives of many by promiscuously accusing them of concealing secret allegiance to international Communism. The likelihood of new abuses would approach 100 percent in a political culture in which the presumptive Republican nominee for the presidency, a former federal prosecutor who writes at National Review, and many rank-and-file Republicans suggest they believe even Barack Obama to be secretly allied with America’s jihadist enemy.

At Reason, Jesse Walker offered a warning to anyone else tempted by the course Gingrich proposes:

Whenever someone mentions the committee's efforts in the Nazi era, as opposed to its better-known role in the Red Scare, I remember a sequence of events that Leo Ribuffo described in his book The Old Christian Right. "Many congressional liberals voted to recharter the House Committee on Un-American Activities in 1938," Ribuffo wrote, "because they wanted to investigate Silver Shirts and Bundists"—two fascist groups of the day. In 1940, he adds, many of them "acquiesced in the passage of the Smith Act," which made it illegal to advocate the overthrow of the U.S. government, because they hoped it "would be used to indict far right agitators."

It wasn't long before those tools embraced by liberals were used against the left. If you find yourself tempted to support Gingrich's plan, you should first ponder the possibility that his committee will eventually cast its eyes in your direction.

The innocents that Gingrich’s proposal most immediately threatens are Muslim Americans, but listening to his rhetoric ought to alarm observant Christians and Jews too. “You have to recognize that sharia calls for killing people who engage in homosexual acts,” Gingrich said. “So if you're a true believer in sharia and you actually understand it––I'm not talking about people who are casually Muslim, or modern Muslim––but if you are like ISIS, of course it's a hate crime, because you hate us.”

Although terrorism perpetrated by adherents of radical Islam poses a bigger threat to American gays than terrorism by radicalized Jews or Christians, members of those faiths might fare no better under Gingrich’s proposed standard. The Bible, for example, states,“If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads.” A congressional investigative body springing from the impulse to consider members of major religions suspect because of words in their sacred texts ought to terrify folks on the religious right who already believe that prevailing cultural trends put them at risk of government persecution. And it would harm many innocents even if only targeted at Muslim Americans.

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On Fox News, host Tom Shillue asserted that “it's time for the rules of war inside the boundaries of this country,” explaining, “I like freedom for me, not the bad guys.” He went on to suggest that before would-be home grown terrorists like the American-born killer in Orlando perpetrate attacks, they should be arrested on the basis of anti-American speech or attitudes and deported––to what country he did not say––even as their citizenship is revoked. As Matt Welch of Reason retorted, law enforcement can already obtain warrants and bring enormous scrutiny to bear on anyone they suspect of planning or supporting a terrorist attack. But they “cannot charge someone with pre-crime,” he said. “This is not Phillip K. Dick.”

Shillue responded that the Orlando killer said America deserved the 9/11 attack, and that the Constitution should be changed so that speech like that cost someone their citizenship and get them deported. Watch out, Jerry Falwell and Pat Robertson:

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Hillary Clinton, the presumptive Democratic nominee for president; Senator Dianne Feinstein; and other prominent Democrats responded to the Orlando attack by insisting that anyone placed on America’s terrorist watch list should not be allowed to buy a gun. “If you are too dangerous to get on a plane,” Clinton declared, “you are too dangerous to buy a gun in America.” The Orlando shooter was not on the watch list when he bought his gun, but had reportedly been on it in the past.

As I noted two years ago, America’s terrorist watch list is an opaque abomination. Members of the public are unaware of what actions might get them placed on the list. Individuals cannot verify whether or not they've been designated by their government as an enemy. They can't challenge their status before a neutral arbiter, or know when their status changes. The Obama administration has run a system in which watch-list standards are beyond debate, and in which individual determinations are made entirely within the executive branch, short-circuiting the American system of checks and balances. This degree of secrecy and arbitrariness is un-American, and may even prevent scrutiny of why this latest terrorist was erroneously excluded as a threat.

It is already a scandal that a list like this can prevent a person from flying, as if moving about the country is a privilege, not a right. And now, Democrats are proposing that being on a secret, due-process free list should strip people of a constitutional right.

“If the government can revoke your right to access firearms simply because it has decided to place you on a secret, notoriously inaccurate list, it could presumably restrict your other rights in a similar manner,” Mark Joseph Stern points out at Slate. “You could be forbidden from advocating for causes you believe in, or associating with like-minded activists; your right against intrusive, unreasonable searches could be suspended. And you would have no recourse: The government could simply declare that, as a name on a covert list, you are owed no due process at all.”

(Republicans who are perfectly fine with the no-fly list and other affronts against due process but don’t want to apply it to gun purchases have a far less defensible position.)

You’d think that the rise of Donald Trump, who has no problem singling out whole ethnic groups he mistrusts, would cause Democrats to pause at this proposal, if only because they can imagine a Trump administration that simply strips all Muslim Americans of the right to own a gun by designating them as watch-listed. Legislators who believe more gun control will keep Americans safer ought to focus their efforts on bullets-per-minute ratios, not a secret subversives list.

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Terrorism is frightening. And the mass murder of innocents causes people to search for something to do in response. Although America can doubtless improve its approach to counterterrorism, its citizens, particularly its political leaders and television personalities, should take much greater care to avoid responses that are counterproductive or that infringe on civil liberties, because imprudent reactions to terrorism can cause far greater harm to the United States than lone-wolf jihadists.

And this moment, when Congress ought to be trying to tyrant-proof the White House, is a particularly inopportune time for new fear-mongering assaults on civil liberties.

Paradoxically, it is easier to get beyond fear and make better decisions about policy once you reflect upon the fact that even if America responded in all of the alarmist ways outlined above—reviving the House Un-American Activities Committee, stripping Americans of their citizenship for protected speech, and prohibiting people on the terrorist watch list from buying guns, with all the unintended consequences that would follow—terrorists could still attack soft targets with ease. Truly getting tough on terrorism, rather than grandstanding to that effect, means acknowledging that the problem is too complex for knee-jerk solutions.