Saving the Constitution from the War on Terror

By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.  

The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done. 

For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.  

Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.    

Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.

Even the structures of federalism got into the act. Over 400 cities, towns, and villages, and eight states signed on to variations on a Bill of Rights Defense Committee resolution, fighting back against the USA PATRIOT Act. The City of Portland, Ore., withdrew from a Joint Terrorism Task Force in order to ensure respect for an Oregon law more protective of political and religious rights than federal law. And some local chiefs of police relied on the Tenth Amendment in declining to assist the FBI with wholesale interrogation of Muslims and Arabs in their communities.

Most significantly, members of the true government, “we, the people,” stood up for our rights. Internet service provider Nicholas Merrill spent six years under a painfully constricting gag order while he challenged the constitutionality of National Security Letters. Librarians, reporters, and military leaders took on the job no branch of the federal government was willing to do: preserving our constitutional heritage in the face of panicky public willingness to throw away our liberties in the hope of becoming safer. 

At the same time, my book also recounts how the threat to our constitutional heritage has been and continues to be more profound than many realize. In addition to chipping away at Fourth Amendment privacy protection and First Amendment freedoms of speech, association, and religion (among other rights), the “War on Terror” has threatened the very structures of our democracy, making it more difficult for us to regain our balance.  

The right to a jury trial cannot protect individuals against government overreaching if key decisions are withheld from jurors. An Iranian woman living under the pseudonym of Roya Rahmani was granted political asylum after a horrific stay in an Iranian prison for the crime of supporting a pro-democracy group. The U.S. then prosecuted her for providing material support to the same group. The Ninth Circuit held that she could not argue to her jury that this group is not a terrorist group, but a pro-democracy group misdesignated for political reasons (to promote negotiations with the Iranian government). 

The critical role of federal judges has been undermined by resort to procedural excuses -- like the state secrets privilege and overblown standing and immunity doctrines. Public right of access to information about judicial proceedings has been compromised by undue levels of secrecy surrounding litigation – even including entire cases not listed on court dockets. Although hundreds of thousands of National Security Letters have been served, because of gag orders, we only know the stories of six of their recipients. And most profoundly disturbing of all, the American people by and large have accepted the notion that they should just trust the government – especially now that George W. Bush is no longer President -- rather than demand enough information to make the key policy decisions involved. Will we ever hold a serious debate about whether the Patriot Act’s vaunted anti-terrorism measures actually offer enough benefits to outweigh their still unmeasured costs or whether some might indeed be counterproductive?

I haven’t written a 9/11 book, but a book about how the Constitution works and how it can be prevented from working, using post-9/11 antiterrorism measures as my laboratory. Anthony Lewis ended his review of my book by saying, “Read her and think.” Let’s stop weeping and, instead, learn more and think harder about how to educate the public and restore our rights. My book offers some more information and more ideas about how we can give the Constitution the active attention it deserves. No one else is going to do it if we, the people don’t.