Taking Liberties by Susan Herman

In his farewell address yesterday to Congress, Ron Paul listed what he felt are the 5 greatest dangers to American liberty. Number 1 on his list:

The continuous attack on our civil liberties which threatens the rule of law and our ability to resist the onrush of tyranny.

To understand what Dr. Paul is talking about, I highly recommend reading Susan Herman’s book Taking Liberties: The War on Terror and the Erosion of American Democracy.

The book takes a hard look at the measures our government has taken since 9/11. The results, as any civil liberties advocate can tell you, are pretty horrifying. A government that acts in secret casts a wide dragnet to prevent terrorism; our rights to free speech, freedom of religion, protection from unreasonable search and seizures, and due process become casualties. The effectiveness of these measures is suspect, as Herman tells the stories of innocent people ensnared in this dragnet. A few of the individuals described include:

*Sami Omar al-Hussayen, charged with supplying material support to terrorists. The PATRIOT Act allowed the government to conduct surveillance on Sami without probable cause. The material support charge came from Sami’s work as a webmaster for a group of Islamic websites. Essentially Sami was targeted because of his religion, not any proof of aiding terrorists. A jury found him not guilty of the terroism-related charges.

*Abdullah al-Kidd, a native-born American convert to Islam, seized via a material witness arrest warrant, which allowed the government to imprison al-Kidd despite not charging him with a crime. Once again, the probable cause requirement of the 4th Amendment was skirted (hence using the material witness arrest warrant). Even with the probable cause requirement skirted, the government still fudged the facts to get this warrant. Abdullah was never even called as a witness.

*Brandon Mayfield, an innocent man and American citizen accused of bombings in Spain. Spanish authorities determined the fingerprints found on a bag of detonators that the FBI claimed matched Mayfield did not match. Since probable cause did not exist, Mayfield was also arrested as a material witness. Thanks to the PATRIOT Act, the government used the FISA court, with its non-existent probable cause requirements, to spy on Mayfield (FISA was initially meant only for “foreign powers”).

The book details very troubling incidents where the government issued National Security Letters on a library and an Internet company to fish through private records. NSLs are not court-approved warrants, but self-written warrants used by the FBI and other agencies. The recipients of these NSLs challenged these orders, and found their basic rights limited. They were prevented from testifying before Congress about their treatment. They were prevented from attending court hearings challenging the NSLs and their lawyers were prevented from seeing the evidence used by the government to support the NSLs. The recipients were even prevented from revealing to colleagues and friend that they even received the NSLs. The government eventually dropped its pursuit of these records when rulings went against them, strongly implying these fishing expeditions often have nothing to do with American security.

Herman also dedicates a chapter to the warrantless surveillance program started under the Bush administration in secret, without approval from Congress. After the program was exposed, Congress went ahead and approved the program anyway.

The book is not partisan. While the Bush administration took these powers to a whole new level, the Obama administration has taken the torch and embraced the use of these powers as well. Both the Bush and Obama administration have argued for immunity from any illegal actions taken by the government.

Due to the secrecy of the last decade, we have no idea just how much damage the federal government has done to the lives of innocent people. Looking at the scenarios described above, it’s safe to assume there are plenty of victims. Herman does report on a Inspector General report that cited over 3,000 violations by the FBI of their PATRIOT Act-enhanced NSL authority in the first 4 years of the law. Three thousand. Just what exactly those violations were is not explained.

Have these measures made us safer? The book provides a lot of doubt. Herman cites the 9/11 Commission’s skepticism on the government’s targeting of domestic Islamic charities, as the United States is not a pipeline for al Qaeda funding. Targeting these charities serves to undermine Islamic support for our fight against terrorism. The book also cites an expert opinion that our vast data mining is not an effective measure to identify terrorist patterns.

Unfortunately, the book did not get into the use of drones and “kill lists.” Torture is only given a couple paragraphs, and the book was published before the infamous NDAA law was signed by President Obama. These are important topics that hopefully a paperback edition of this book will explore.

The War on Terror decade has been a war on American values. This book does a public service trying to restore some balance.

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