How Patriotic is the Patriot Act?

Freedom Versus Security in the Age of Terrorism

Amitai Etzioni

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781135929961
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

In this short book, Etzioni, the well-known and respected public intellectual and communitarian thinker, charts a middle course, or third way 'between those who are committed to shore up our liberties but blind to the needs of public security, as well as those who never met a right they are not willing to curtail to give authorities an even freer hand.' This book will prove a useful guide for citizens looking for a thought provoking, well-reasoned and sober analysis of one of the hot button issues of our time.

1

HOW LIBERTY IS LOST

In the wake of numerous changes made in U.S. law and that of many other countries following the September 11 terrorist attack, civil libertarians, libertarians, and many others have raised concerns that the nations involved are sacrificing their liberty to enhance their safety. Civil libertarian organizations such as the American Civil Liberties Union (ACLU) have described the government’s penchant toward obtaining new powers after September 11, 2001, as an “insatiable appetite,” characterized by government secrecy, a lack of transparency, rejection of equality under the law, and “a disdain and outright removal of checks and balances.”¹ Articles in the popular press express similar sentiments. Writing in the American Prospect, Wendy Kaminer expressed the fear that by giving the “FBI unchecked domestic spying powers and instead of focusing on preventing terrorism, it will revert to doing what it does best—monitoring, harassing, and intimidating political dissidents and thousands of harmless immigrants.”² In short, it has been argued that in order to protect ourselves from terrorists, democracy may be endangered, if not lost.

The question, “Under what conditions is democracy undermined?” has been the topic of considerable previous deliberations, especially by those who have studied the fall of the Weimar Republic and the rise of the Nazis in Germany. However, in past decades, much more focus was placed on the question of how to help democracy grow in countries that have had little previous experience with this form of governance (for instance, some former communist nations and a fair number of developing nations), rather than on how democracy might be lost. Given the recent events and claims, the latter question deserves revisiting. This question is particularly germane because if it were true that in order to survive future waves of terrorist attacks (including ones using weapons of mass destruction) we must turn our free societies into garrison states, many members of free societies might well be reluctant to accept such a trade-off.

Fortunately, the empirical basis for such a study of the conditions under which democracy is actually lost is very limited because democracy—once firmly established—has almost never been lost due to internal developments (as distinct from occupation by an invading force). Democracy seems to be an odd plant: it has been very difficult for it to take root, especially in parts of the world where it has not been “naturally” found, but where various efforts have been made to seed it. Once it buds, it often faces great difficulties and frequently dies on the vine, or at least suffers numerous setbacks before it grows properly. But after it firmly takes root, it tends to withstand numerous challenges well and is rarely lost. Indeed, only one example of democracy lost comes to mind—the already-mentioned Weimar Republic—and it is arguable whether democracy was even well established there. Other cases in point may be found in Latin America.

Before the discussion proceeds, a word on definition. If one defines “democracy” very lightly, such as the holding of regular elections, one finds that none of the preceding statements hold true. Elections are held all over the world, including in nations in which there is only one political party, one candidate, a legislature that rubber-stamps whatever the government proposes, a press controlled by the government, and individual rights that are not respected. Such “democracies” come and go, at the whim of the military or some other power elite. Democracy, here, is taken to mean a polity in which there are regular, institutionalized changes in power, in line with the preferences of the people freely expressed. It entails a whole fabric of institutions: two or more political parties, some measure of checks and balances among the various branches of the government (although, of course, these may differ from the U.S. setup), courts that effectively protect individual rights, and a free press. While some scholars draw important conceptual distinctions between liberal (rights-based) polities and democratic ones, and others focus on the definition of liberty, here we treat all of these as key elements of a democratic polity. To remind the reader of this fact, I use the phrase “constitutional democracy;” our democracy is ensconced in a framework of rights that are not subject to majority rule.

The Slippery Slope Hypothesis

The civil libertarian’s narrative about how democracies are lost is basically as follows. First, the government, in the name of national security or some other such cause, trims some rights, which raises little alarm at the time (e.g., the massive detention of Japanese Americans during World War II). Then a few other rights are curtailed (e.g., the FBI spies on civil rights groups and peace activists during the 1960s). Soon, more rights are lost and gradually the entire institutional structure on which democracy rests tumbles down the slope with nobody able to stop it.

If one fully embraces this argument, one cannot in good conscience support any significant adjustments in the ways we interpret the Constitution, its Bill of Rights, the powers allotted to public authorities, and other key features of a democratic polity. If one fears setting foot on the slope because he may end up on his backside at the lower end of the slope, there is only one alternative: to remain frozen at the top, opposed to all changes. When Katie Corrigan, legislative counsel with the ACLU’s Washington office, testified before Congress, she noted that the ACLU has supported some post-September 11, 2001, changes, including the fortification of cockpit doors, matching baggage with passengers, and limiting the number of carry-on bags passengers may bring on planes,⁴ a rather limited list.

By contrast, I argue that one is able to make notches in the slope. In other words, before setting foot on it, one needs to mark how far he is willing to go and what is unacceptable in order to avoid slipping to a place one is not willing and ought not to go.⁵ A detailed examination of the changes introduced after September 11, 2001 in the United States shows that some of them are reasonable (e.g., roving wire tapes) and others are quite unacceptable (e.g., the military tribunals as originally conceived).⁶ The distinction between these changes suggests that rather than refusing to adjust, we need to examine more closely the various new measures that are being advanced. Indeed, very few would seek to leave the Constitution as originally formulated, according to which non-Europeans do not count as full persons, there is no right to privacy, and free speech is much less protected than post-1920 interpretations (led by the ACLU to its credit) made it. In short, changes in the ways we view individual rights do not signify the end of a democratic form of government. Indeed, as I shall try to highlight in the next section, the relationship runs the other way around: when democratic institutions and policies do not provide an adequate response to new challenges, they are undermined.

The Weimar Hypothesis

There is an immense literature on the question of what led to the collapse of the Weimar Republic and the rise of Nazi Germany, all of which contain numerous different interpretations of that part of history.⁷ It is well beyond the scope of this study to try to sort out these differences. For the purposes at hand, it suffices to cull out one hypothesis, which can be further examined in light of recent developments and data. The hypothesis is that the Weimar Republic lost its legitimacy and opened the door to a tyrannical government due to its woefully insufficient responses to major public needs.

Following the defeat of Germany in World War I, the people’s pride was already shaken. People felt threatened when defeat in the war was followed by massive unemployment and runaway hyperinflation, leading to what historian Peter Fritzsche calls “extraordinary hardship[s]”⁸ and “disastrous economic and political conditions.”⁹ The Weimar Republic’s response was weakened by its difficulties in forming coalitions among its “superabundance of political parties,”¹⁰ corruption, and scandals.¹¹ The “growing number and severity of the problems confronting the German nation were largely due to the inefficiency of the government,”¹² finds Theodore Abel, who also lists “discontent within the existing social order”¹³ as the first factor contributing to the rise of the Nazi movement. He notes that discontent was expressed by people blaming the government for their problems.¹⁴ Overall, “the Weimar system has enormous weaknesses,” posits Kurt Sontheimer.¹⁵

Other scholars, for instance Sheri Berman, point to similar reasons the republic collapsed. She argues that although the Weimar Republic had an active civil society, its weak political institutions and structures sharpened divisions in German society and “obstructed meaningful participation in public life.”¹⁶ Likewise, Arthur van Riel and Arthur Schram note that the elected national assembly was unable to respond effectively to economic challenges and that “any struggle for political reform was viewed as a threat to the delicate equilibrium of political and economic interests.”¹⁷ Other historians have made similar observations. The inefficiency of democracy and the difficulty of forming a coalition have been highlighted by Fritz Stern, who also argued that “as the economy faltered and the government was unable to react to the economic and political problems, voters turned their back on the Weimar Republic.”¹⁸ As a result of the lack of responsiveness, “too many Germans did not regard it as a legitimate regime,” writes E. J. Feuchtwanger in From Weimar to Hitler¹⁹ (although he notes the other numerous factors that contributed to the republic’s demise). Thus, according to these as well as still other scholars, the Weimar Republic did not respond effectively—both economically and politically—to its citizens’ major needs in the face of crises, and thus it lost its legitimacy.²⁰

Thus, there is good reason to believe that inaction in the face of threats, not excessive action, killed the Weimar Republic. In short, when democracies do not work, they open themselves to tyrannies.

Post-September 11 Lessons

Did our constitutional democracy lose support after September 11, 2001; and if it did, due to what factors? The data cited next suggest that during the immediate period after the attack, when the public was most concerned about its safety (fearing additional attacks from sleeper terrorist cells on short order), people were most willing to support a strong government, including one that would set aside many basic individual rights.

However, in the subsequent period, as the government did take numerous and varying measures to enhance public safety and no new attacks occurred, the public gradually restored its commitment to the rights centered, democratic regime. And as the government vigorously enacted measures to protect the public, the public’s support for constitutional democracy was reaffirmed. That is, the U.S. experience in the months following September 11, 2001, helps support the suggested hypothesis by providing a case with a profile opposite that of the Weimar one. When the government reacted firmly to a major challenge, support for constitutional democracy was sustained rather than undermined.

The Rise and Fall of Public Fears

To put the hypothesis that is being explored here in semiformal terms, it might be said that we seek to assess whether the size of a challenge (in this instance the September 11 terrorist attacks) minus the impact of new measures undertaken to enhance public safety will correlate with the extent to which the public will support a rights-based, constitutional democracy. For the purposes at hand, no distinction is made as to whether the public’s concerns are realistic, overblown, or underestimating the danger. (We know from crime studies that the public’s fear of crime and the actual level of crimes do not necessarily go hand in hand.) The reason for this approach is that democracy will be endangered...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• Chapter 1 How liberty is lost
• Chapter 2 An overview of security measures
• Chapter 3 Privacy and security in electronic communications
• Chapter 4 Public health and the threat of bioterrorism
• Chapter 5 A case for national id cards?
• Chapter 6 The limits of nation building
• Notes
• Index