“Not all new tactics in combating terrorism in the United States were based on existing laws. “In electronic surveillance, you did have a big change,” said John C. Yoo, a law professor at the University of California, Berkeley, who became known for his aggressive legal advice and expansive view of executive power as a Justice Department official in the Bush administration.
In 2002, for instance, a special federal appeals court, the United States Foreign Intelligence Surveillance Court of Review, granted the Justice Department broad new powers to use wiretaps obtained for intelligence operations in criminal cases. “This revolutionizes our ability to investigate terrorists and prosecute terrorist acts,” Mr. Ashcroft said at the time.
After revelations concerning the warrantless wiretapping of international communications, Congress largely endorsed the program. Those legal changes, joined with striking advances in technology, have allowed the government broad ability to gather information.
“The Fourth Amendment has been seriously diluted,” said Professor Herman, who teaches at Brooklyn Law School. She added that she was struck by “the amount of surveillance that’s been unleashed with less and less judicial review and less and less individualized suspicion.”
Both the Bush and Obama administrations have been criticized by liberals as employing excessive secrecy and, in particular, for invoking the state secrets privilege to shut down civil litigation challenging things like rendition and surveillance programs. By international standards, though, the public has learned a great deal about secret government activities.
“That so many of the abuses committed by the executive in the wake of 9/11 have come to light is another sign of American exceptionalism,” Professor Roach wrote, “as manifested by the activities of a free press that is unrestrained by official secrets acts found in most other democracies.”
Opinions vary about whether efforts to fight terrorism in the United States have inflicted collateral damage on political dissent, religious liberty and the freedom of association.
“If you look at it historically,” said Professor Yoo, “you might say, ‘I can’t believe we’re at war,’ when you see how much speech is going on. Civil liberties are far more protected than what we’ve seen in past wars.”
Professor Cole was less sanguine.
“Since 9/11, the criminal law has expanded, ensnaring as ‘terrorists’ people who have done no more than provide humanitarian aid to needy families, while privacy and political freedoms have contracted, especially for those in Muslim communities,” he said. “On the one hand, the past 10 years have shown that criminal law can be used effectively to fight terrorism; on the other, it has also demonstrated that the demand for prevention can all too quickly lead to the abuse of innocents.”