ALMOST AS SOON AS THE PLANES CRASHED INTO THE TWIN TOWERS, SCHOLARS, pundits, and politicians began asserting that our most important challenge as a democracy now is to reassess the balance between liberty and security. As Harvard human-rights scholar Michael Ignatieff wrote in The Financial Times on September 12, "As America awakens to the reality of being at war--and permanently so with an enemy that has as yet no face and no name, it must ask itself what balance it should keep between liberty and security in the battle with terrorism."
Long before anyone had a clear idea of what went wrong--much less how to make sure it never happened again--public debate began with the assumption that something about the current "balance" was partially to blame for the attacks' success. As the attorney general testified in December 2001, "al-Qaeda terrorists are told how to use America's freedom as a weapon against us." In embracing the USA PATRIOT Act just weeks after the attacks, congressional member after congressional member stood to explain, as then-Senate Majority Leader Trent Lott put it, "When you're at war, civil liberties are treated differently." Minority Leader Dick Gephardt embraced the assumption as well, saying, "[W]e're not going to have all the openness and freedom we have had."
Our open society had made us less secure. The converse was as clear: A less free society would be safer. We had posited a solution before we had identified the problem. And we had based the solution on the premise that liberty and security are a zero-sum game.
WHILE THE DRIVE TO THINK ABOUT SEPTEMBER 11 in terms of its implications for personal liberties was understandable, the balance metaphor is badly flawed. As the commission report itself demonstrates, the fundamental freedoms of our open society were not the primary (or even secondary) reason the terrorists succeeded on September 11. FBI agents in Minneapolis failed to search terrorist suspect Zacarias Moussaoui's computer before the attacks, not because constitutional restrictions against unreasonable searches and seizures prevented them from doing so but because they misunderstood the tools the law provided. The vast majority of the September 11 hijackers were able to enter the United States not because equal protection provisions prevented border officials from targeting Arab and Muslim men for special scrutiny but because, according to the commission, "[b]efore 9/11, no agency of the U.S. government systematically analyzed terrorists' travel strategies" to reveal how terrorists had "detectably exploit[ed] weaknesses in our border security."
It is also not the case that a society less concerned with human rights is per se better protected from terrorism. On the contrary, some of our most rights-damaging measures since September 11 have had a neutral or even negative effect on counterterrorism. Most important, it is not the case that enhanced security invariably requires a compromise of human rights.
The balance metaphor has made crafting a security policy response to September 11 easy--and often misguided. It has also made policy unduly prone to undermine human rights. Three years after the fact, both rights and security are the worse for wear.
CAUGHT IN THE BALANCE
The PATRIOT Act became an important first example: It allows the FBI to secretly access Americans' personal information (library, medical, telephone, and financial records, among other things) without needing to show to an independent authority (like a judge) that the target is particularly suspected of terrorist activity. Yet the September 11 commission's report and other studies done since the attacks suggest that our primary intelligence failure on September 10 was not having too little information; our problem was failing to understand, analyze, and disseminate the significant quantity of information we had. For example, Minneapolis FBI agents did not understand what "probable cause" meant (the level of evidence required to obtain a regular criminal search warrant)--so they did not understand that they could have secured a run of the-mill search warrant on Moussaoui. …