The focus of concern about the tension between liberty and security in dealing with terrorism has centered on the antiterrorism bills and the resulting USA PATRIOT Act. (1) But, the issues presented by the statute--involving privacy of space and communications and the reputational risks that arise with a broader sharing of information--are not as important as those within the discretion of the executive branch, before as well as after September 11. A number of these questions are of major importance and are likely to escape careful attention.
The issues of discretion involve matters of life or death, torture, detention without trial, trial without juries, and basic freedoms to dissent. These discretionary determinations also raise issues of profiling that cut deeply into notions of equal citizenship and equal protection. Most of these questions involve the human rights of citizens of other countries, but some involve Americans as well.
The critical tradeoffs forced on those living in the United States by the events of September 11 are not those pitting the rights of Americans to be free of intrusive investigative steps against the needs of national security. They are:
* The privacy rights that are involved in the collection and use of information from a wide variety of sources versus the privacy rights compromised by intrusive techniques.
* The costs in terms of privacy and efficiency of investigating all possible suspects versus the discriminatory effects of focusing investigation on groups characterized by ethnic characteristics.
* Internal security measures versus law enforcement measures and the use of intelligence agencies versus the use of law enforcement agencies.
* The difficulty of trials in the United States versus assassination abroad or military tribunals (which are spared the difficulties of open proof and an independent fact-finder).
* Greatly increasing the level of intrusiveness of investigative activity in the United States versus encouraging other nations to increase the intrusiveness of their own investigations.
So the focus of this Essay, therefore, is not on new statutory powers but on the more consequential refocusing of powers long available to U.S. law enforcement and intelligence agencies. It is about the tactical interplay of rules for U.S. citizens with rules for non-citizens. The risks to American civil liberties--and to the human fights of others--result from the efforts we will make to increase our security (and our freedom from fear) in any of three ways--prevention, consequence management, and punishment.
Prevention. We must try to increase our security against major terrorist attacks by some mix of the following ways to prevent attack in the first place: (1) learning of a terrorist group's plans in advance, monitoring its efforts, and frustrating those efforts; or (2) denying all those who do not pass some test of loyalty access to likely targets or to the resources needed to attack those targets; (3) combining the first two by discovering who to track by monitoring efforts to obtain access to targets and dangerous resources; or, finally, (4) detaining, without criminal convictions, those who are more likely to support an act of terrorism.
Consequence Management. To the extent we fail to prevent a terrorist attack, we must be prepared to minimize its harmful consequences. If we are talking about massive attacks of terrorism such as those on September 11 or like those that might follow from use of biological or nuclear weapons, that requires planning to make available emergency powers that are not generally granted to law enforcement, military, or intelligence agents--a grant that carries with it grave dangers.
Punishment. Finally, if we have failed to prevent a massive terrorist attack, we will want to retaliate against the terrorist group, its leaders, and any state that supported it. …