The Unitarian Church of All Souls • 1157 Lexington Avenue • New York, NY 10021 email: peacetaskforcenyc@yahoo.com

The Cost Of Counterterrorism

Talk by Laura K. Donohue
Sunday, September 7, at 1:00 p.m.
Review by Phoebe Hoss

We all know that shortly after the horrendous attacks on the World Trade Center and the Pentagon on September 11, 2001, the Bush administration met the crisis by getting Congress to swiftly pass the Patriot Act. Few of us, however, have any real idea of the provisions in that act or of other executive measures taken in the fall of 2001. Nor are most of us aware of how these measures have not only seriously eroded our civil liberties but also “radically” increased executive power in respect to the other two branches of our government.

In her talk on Sunday, September 7, courtesy of the Peace Task Force, Laura K. Donohue gave us a chilling inkling of the far-reaching effects of these measures. Ms Donohue is a fellow at both the Constitutional Law Center at Stanford Law School and Stanford University’s Center for International Security and Cooperation. She is also the author of The Cost of Counterterrorism: Power, Politics, and Liberty, published this year, which lays out in compelling detail counterterrorist measures in both this country as well as the United Kingdom, which has long experience with terrorism.

The government’s rationale for the 2001 Patriot Act – that to achieve security Americans must be willing to sacrifice some freedom – is, according to Ms Donohue, dangerous and misleading. Among the areas covered by the Patriot Act and other executive measures in the fall of 2001 are: antiterrorist finance, coercive interrogation, surveillance, and data mining. In respect to anti-terrorist finance, one can -- on the basis of secret evidence, which one has no chance to refute -- find oneself on a global terrorist list and one’s assets frozen. Serious torture was allowed under coercive interrogation. The provisions regarding surveillance involve a weakening of the Foreign Intelligence Surveillance Act, the issuing of delayed-service warrants (where a person’s office or home can be broken into without notice), national security letters (which gag anyone served with one); broadly increased the authority of the Department of Defense; allowed the FBI to penetrate private computers; and established “watch lists.” An example of the last is the “no fly” list, which as of July 2008 contains one million names: if your name appears on it, you need not be told why; and while you may clear yourself and be allowed to fly, your name will not necessarily be removed from the list. In data mining, an agency gathers large amounts of information about people’s activities from their credit cards and from financial, phone, and other records and analyzes them to discover patterns of activity that might relate to terrorism. Among the agencies now data mining are the CIA, the FBI, the Department of Defense, the Department of Education, the Department of Homeland Security.

None of these programs has been adequately overseen or curtailed by the other two branches of government: Congress and the judiciary. The Patriot Act was, indeed, passed so swiftly that no member of Congress had time to read its 300 pages.

After a crisis, legislators want to be seen to be responding to it forcefully; in September 2001, they went overboard and allowed the new law to fly through. Although there were sunset, or temporary, provisions, such are difficult to repeal; and today fourteen of the sixteen provisions of the Patriot Act are permanent.

As for the judiciary, counterterrorist law tries to sidestep it. Furthermore, the judiciary tends to consider national security and foreign relations to be the realm of the executive.

In the United States, counterterrorist law is, in restricting individual rights, changing the relation of the individual to the government and narrowing of the public’s ability to check the executive. The failure of the legislative and the judicial branches of the government to do their jobs of checking and oversight could result in an imbalance among our three powers of government, a shift in our constitutional structure. Owing to the government’s secrecy about these measures, this dangerous shift is occurring without any open discussion.

Ms Donohue pointed out that our government’s approach to counterterrorism is not the only one possible. Although Britain has certainly in the past abused counterterrorist power, it has constitutional and statutory restraints that we unfortunately lack. Also, that nation abides by the Geneva Conventions. It is instructive that after the last major terrorist attack, in London in July 2007, the United Kingdom, rather than trying to pass restrictive counterterrorist measures, chose to investigate why the bombings had occurred. The UK has also thrown out five coercive techniques.

Among several points made in the question and answer period after Ms Donohue’s talk were:

If you want to find out whether your name is on a particular agency’s watch list, you can – under the Freedom of Information Act – apply to that agency. This freedom does not hold, however, for the National Security Agency.

Re the attitude of law schools toward all this, there is a broad consensus that the government is seeking too much authority. Students vary in their attitudes.

In comparison with the Vietnam War, we have gone way beyond it in terms of privacy and public knowledge.

Re the fates of to John Yoo and Alberto Gonzalez (who assured the president of the legality of his counterterrorism measures, the former is at the University of California at Berkeley, while the latter can’t get a job in Washington.

When Ms Donohue was asked whether she’d been threatened for her work and her views, she said that, although at first she got some hate mail, she feels she has to speak out. And her talk certainly made me and others in the audience feel that way. If we are to modify the evils of counterterrorist laws and push back on the executive, we all need to urge our legislators to counteract the government’s secrecy and lack of accountability and to resist executive expansion. Ms Donohue gave us plenty of ammunition, as her book can continue to do.