Emergency Powers, Civil Liberties, and State Abuse After 9/11

Introduction

Within the United States, especially after the terrorist attacks of September 11, 2001, there exists a delicate balance between emergency powers, abuse of law by the authorities, and the civil liberties of citizens. There appears to be a significant tension between the expansion of security measures and the preservation of individual liberty (Gearty 1). The question, however, is what "security" actually means. In some instances, security threats take the form of terror attacks or internal forces threatening political establishments — including those that advance particular ideological ends, such as the uprisings witnessed in North African countries like Libya and Arab nations such as Yemen. Nonetheless, in the face of such threats, civil liberties frequently suffer, and reconciling them with national security becomes a serious challenge.

Many aspects of liberal democracy — such as freedom of expression, association, and movement — are placed under strain by events involving gross violence targeting state structures, particularly those furthering specific ideologies. Beyond these freedoms, there are serious repercussions that illustrate the challenge of balancing civil liberties against national security. In most cases, there is a willingness to sacrifice civil liberties in the face of a perceived threat. Acts such as detention without charge or trial, as well as violations of privacy, have been used by the state against an often intangible enemy. A threat can negatively affect the very rights and freedoms that are critical to a democracy, placing pressure on the state to neglect those values. This paper examines the balance between emergency powers, abuse of law by the state, and civil liberties of people within and beyond the United States.

Emergency Powers and Civil Liberties

Despite its championing of human rights across the world, the United States has progressively used a normalization process to introduce certain restrictive measures into its legal system. This is one way in which civil liberty is eroded legally, even within the most advanced democracy. One of the early indications of this occurred shortly after September 11, 2001, when Supreme Court Justice Sandra Day O'Connor suggested that the country was more likely than ever before to impose restrictions on its citizens' liberty. She further suggested a reliance on international laws of war in confronting terrorism, rather than on U.S. constitutional criminal procedures (Greenhouse).

In this regard, Schulhofer argues that the erosion of privacy does not increase security so much as it restricts citizens' freedom. A prominent example of the abuse of law is the expansive surveillance framework contained in the USA PATRIOT Act. The provisions of the Act make it possible to monitor internet usage and access personal records. This Act represents a milestone in the erosion of individual privacy rights that had previously shielded citizens from investigations. It allows the FBI to access personal records of any citizen on a clandestine basis as long as any suspicion is raised against them (Schulhofer 78). The Act is an indication of how imposed measures have the potential to destabilize the balance between emergency powers and civil liberties. The USA PATRIOT Act enables searches and has granted the mandate to conduct secret wiretaps that intercept communications, among other activities that openly violate individual rights.

The Act has not been without strong criticism. Many have cited the possibility of the Act effectively suspending civil liberty, which would undermine the spirit of the nation's founding principles and stain its history. One prominent opponent of allowing the violation of individual privacy rights was Senator Russell Feingold. He argued that the nation had already seen times when civil liberty was sacrificed in favor of national security — particularly in the face of external war threats — and that the country had still not recovered from those scars (Feingold). Feingold asserted that the country should not be allowed to drift back to the days of the Alien and Sedition Acts.

Senator Feingold's remarks evoke painful episodes in American history when the government of the day mishandled human rights. During the Civil War and the Second World War, habeas corpus was suspended — most notably during the internment of Japanese, German, and Italian-Americans. The McCarthy era saw suspected communists blacklisted, and harassment followed the rise of anti-war protests associated with Dr. Martin Luther King Jr.

In addition, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), is a telling example of the extent to which the United States has gone in eroding its citizens' rights. In that case, the United States reversed the immigration status of two naturalized citizens for draft evasion under the Nationality Act and the Immigration and Nationality Act. The court ultimately found both statutes unconstitutional. Nevertheless, such moves are widely regarded as a violation of the spirit of liberty enshrined in the Constitution. As Feingold argues, the Constitution applies to all — the powerful and the powerless alike — in times of national threat and in times of peace (Feingold).

Conclusion

Civil liberties usually suffer in times of emergency. Most likely, the lack of civil liberty in such situations is an indication of their normalization and acceptance into the legal system. The terrorist attacks on the World Trade Center and the Pentagon ushered in a new era in the United States, during which the government imposed measures that eroded civil liberty. These events triggered a chain reaction across borders, with suspects from other countries arrested and brought to Guantanamo Bay.

Many have argued both in favor of and against the sanctions imposed on citizens and suspects alike, particularly in light of their adverse effects on human rights. Some have pointed to government abuse of law, citing the situation at Guantanamo Bay and the reliance on the Nationality Act, the Immigration and Nationality Act, and the USA PATRIOT Act as evidence. With these precedents in place, the nation is more likely to resort to drastic measures as a defense mechanism against perceived security threats. It should therefore be the responsibility of the state to ensure that the application of such measures is carefully restricted in a manner that upholds and gives value to fundamental human rights.