Tuesday, September 06, 2011

Will 9-11 repeat itself?

This Sunday, America recognizes the 10th anniversary of one of its darkest days -- the Sept. 11 terror attacks. One of the questions hanging over the memorials is how safe is America? In other words, could the events of Sept. 11 happen again?

A small part of the answer is no -- never again will hijackers have the opportunity to slam airplanes into America's business or political symbols; those planes will be tracked and destroyed by the U.S. Air Force before they have the chance to be used as destructive weapons.

Moreover, al Qaeda is a less potent entity then it was in 2001. A decade worth of war, drone attacks and other military efforts have killed many of its leaders and scattered its already unstable cells further adrift.

The larger part of the answer though is based on how we as Americans deal with the potential for terrorism. Are we willing to sacrifice some of our most important national principles, for example, in our desire to feel more safe?

In the aftermath of 9-11, America became a national community; a nation cried together, prayed together, got mad together and sought answers together.

We were not Bowling Alone, the title of Robert Putnam's influential book examining the decline of discourse in the U.S. In other words, Americans were not a nation of individuals haphazardly interacting with (or simply ignoring) each other. But could that national community sustain itself?

Putnam returned to his theory in a 2002 article in The American Prospect. He wrote:
But is September 11 a period that puts a full stop to one era and opens a new, more community-minded chapter in our history? Or is it merely a comma, a brief pause during which we looked up for a moment and then returned to our solitary pursuits? In short, how thoroughly and how enduringly have American values and civic habits been transformed by the terrorist attacks of last fall? 
I think we know that answer. At some point over the past 10 years, Americans returned to their insular existence, happier (or at least more interested) in pursuing a host of activities -- including surfing the 'Net (I stand guilty as charged of overdoing it) -- that can be done alone. 

From the earliest years of elementary education, American children are reminded that democracy functions best when the citizenry engages each other, debating the important issues of the day. But the country doesn't do that now (and let's not bring voting into the equation). So, how do Americans know whether they are in danger if they wrap themselves in individual pursuits and then blithely follow partisan media that appeal to them on an emotional level?

Americans take for granted that their phone calls are private (although there is recognition that a cellular phone call can be monitored) communications between the two parties. In an effort to find who in the U.S. might be working in concert with terrorists around the world, the potential for that privacy to be violated -- legally -- rose to potentially unconstitutional levels. Writing in the University of Chicago Law Review, Paul Schwartz reminds us of the broad, secretive authorization President Bush gave the National Security Agency in tapping into phone calls.
According to media reports, President Bush signed a secret executive order shortly after the terrorist attack on 9/11; the order authorized NSA access to foreign transit data routed through the US as well as certain foreign-domestic communications. Due to the growth of fiber optic networks and the digitalization of telecommunications traffic, exclusively international emails or telephone calls are now routed through telecommunications switches located in the US. The presidential authorization for the program or programs has been shared neither with Congress nor the public. The DOJ opinions said to declare the activities lawful remain secret. President Bush also has blocked the granting of security clearances to lawyers at the DOJ's Office of Professional Responsibility (OPR) who were set to investigate the role of DOJ officials in authorizing warrantless NSA surveillance. Attorneys at OPR have never been denied security clearances in the past.
Also writing in the University of Chicago Law Review, Patricia Bellia reminds her readers that the necessity of a warrant before a search can be undertaken is a bit murkier.
When government agents' direct, on going observations of a target's activities would invade a reasonable expectation of privacy, agents ordinarily must obtain a warrant before engaging in those observations. The reasonable expectation of privacy test derives from Katz v United States,' a case dealing specifically with surveillance to collect the contents of communications,6 but the test applies to other surveillance activities as well. In Kyllo v United States, for example, the Supreme Court applied Katz to invalidate agents' use of thermal imaging technology to acquire details about heat patterns inside a home. Current Fourth Amendment doctrine, however, takes a dramatically different approach to government agents' indirect, surveillance like activities, even when those activities yield precisely the same information as?or more information than?direct observation. 
Is America prepared to grant increased powers to the executive, legislative or judicial branches in order to feel safer? "Wait a minute!" the critics say. "America was at war 10 years ago." (And I suppose we still are today!) "When we are at war we need to abandon some of the rules that exist in normal times. If that means allowing the NSA to listen into a few more phone calls or softening up the rules for a warrant-less search, well then count me in."

I see. But you also want the federal government to be smaller and to stay out of people's lives, right?

Moving on, consider also how modern technology allows terrorists to reach audiences more quickly and more easily than ever before. No one would argue that the Internet ought to be shut down to prevent terrorists from reaching the people who support them. But should terrorists' Websites be shut down? CQ Press asked that question two years ago in a series of reports.

And just how pervasive are these Internet sites? Consider this excerpt from one of the CQ Press stories:
The University of Arizona’s “Dark Web” project, which tracks terrorist and extremist content in cyberspace, estimates there are roughly 50,000 such Web sites, discussion forums, chat rooms, blogs, Yahoo user groups, video-sharing sites, social networking sites and virtual worlds. They help to distribute content — such as videos of beheadings and suicide attacks, speeches by terrorist leaders and training manuals — that may originate on just a few hundred sites.
So, will we be safer if we shut down anti-American Websites? Remember that the Founding Fathers, the men held in high esteem even today in this country, established various amendments to the U.S. Constitution. And the first one was: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

Do you see a slight problem with "abridging the freedom of speech" when a Website is shuttered?
Someone reading this is about to jump out of his or her chair and scream that I am the typical pointy-headed liberal college professor. Spare me. If they read this blog on a regular basis, they know that I sit proudly at the center of the political spectrum, aligned with no political party. And I'm as comfortable bashing the left of the left as I am the right of the right.

American principles are supposed to be timeless, afforded to all and not subjected to the whims of any political figure or group. Let's not forget that in an attempt to feel safer. The country is safer when the principles it stands for are always upheld.   

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