Why Should I Care?

Nick George, a 22-year-old senior at Pomona College, learned first-hand how post-9/11 security measures can affect anyone.

Nick had become interested in Middle Eastern studies and, in August 2009, he decided to occupy himself during the long flight back to school from his home in Philadelphia by studying his Arabic-English flashcards. When security screeners spotted the flashcards, they pulled him aside. He was handcuffed, detained in a cell at the airport police station, and aggressively interrogated for some five hours. “Do you know who did 9/11?” When Nick meekly responded “Osama bin Laden,” he was asked “Do you know what language he spoke?” “Do you see why these cards are suspicious?”

After his Kafkaesque ordeal finally ended, Nick continued to be bothered by his first-hand knowledge that the system allowed this type of senseless harassment. If it happened to him, it could also happen to others. So he went to the ACLU and became a plaintiff in a constitutional challenge called George v. TSA (see http://www.aclu.org/national-security/george-v-tsa).

Nick is not the only one to be troubled by the post-9/11 dragnets the government insisted on deploying after 9/11 —just in case more sweeping surveillance and more all-encompassing criminal laws might catch a terrorist who might not otherwise be caught. It is of course inevitable that these dragnets will sweep in ordinary, innocent Americans like Nick.

But the dragnets are still with us because so many people assume that they themselves will not be affected if they are not guilty of anything; that we need to just trust the government to use its vast powers only against the truly guilty; that the powers conferred by the Patriot Act, etc., must be working because there has not been another major terrorist attack in the US since 9/11; that abuse of discretion is not a problem now that George W. Bush is no longer in the White House; that we can’t actually participate in policy decisions in this area anyway because necessary secrecy prevents us from assessing either the benefits or the costs of all those powers.

I wrote a book, Taking Liberties: The War on Terror and the Erosion of American Democracy, to illuminate the costs of our current strategies and to question the assumptions that have allowed these strategies to become rooted in our legal system. Some are simply illogical (lack of an attack obviously does not prove that every controversial power has helped to prevent attacks). Others are inconsistent with the fundamental premises of our American democracy (the Constitution does not demand that we trust our elected leaders, but trusts “we, the people” to be the true government). Others are incorrect (although Barack Obama tried to change our policies with respect to detentions at Guantanamo and “harsh interrogation techniques,” in the areas my book covers—domestic antiterrorism measures—he has fought to preserve all the powers Bush claimed, including a screen of secrecy that keeps us from knowing how those powers are being used). And Nick George’s story is just one of many examples demonstrating why just trusting the executive branch not to abuse vast powers, often wielded in secret, is just as bad an idea as the authors of the Constitution thought.

The decade-long battle over our antiterrorism strategies has created American heroes as well as victims. Nick George is one of those heroes. Another Nicholas, Nick Merrill, an Internet service provider, received a “National Security Letter” from the FBI demanding information about one of his clients. He also became an ACLU client because, having studied constitutional law at Hampshire College, he didn’t think that such serious invasions of privacy should be allowed without a court order. (In these days of cloud computing, just think about how much information your internet service provider has about your life!) Nick was also indignant that a gag order prohibited him from ever telling anyone—including Congress, a lawyer, or a court—anything at all about his own experience with the Patriot Act. The same gag order prohibited him from revealing that he was the plaintiff in his “John Doe” lawsuit, for the unbelievable period of six years.

But like his namesake, Nick Merrill is exceptional in his willingness to stand up for our rights. Hundreds of thousands of National Security Letter demands have been made in the past decade, but so far as we know, Nick was one of only six recipients who challenged the government’s power to chip away at our privacy and free speech in this manner.

Will you be one of the patriots who cares enough to find out how the hastily conferred powers in the USA Patriot Act are being used and then think about whether some of them should be modified? Or will you be one of the multitudes willing to let our constitutional heritage slip away by doing nothing, soothed by assumptions that are probably untrue?

For an in-depth account of why you should care about this, you can read my book. For suggestions about what we can all do to limit the damage, you can visit http://www.aclu.org and read A Call to Courage: Reclaiming our Liberties Ten Years after 9/11.

Susan N. Herman is president of the American Civil Liberties Union and the Centennial Professor of Law at Brooklyn Law School. She is also author of Taking Liberties: The War on Terror an d the Erosion of American Democracy (Oxford University Press 2011).