Taking Liberties: The War on Terror and the Erosion of American Democracy

In this eye-opening work, the president of the ACLU takes a hard look at the human and social costs of the War on Terror. A decade after 9/11, it is far from clear that the government's hastily adopted antiterrorist tactics--such as the Patriot Act--are keeping us safe, but it is increasingly clear that these emergency measures in fact have the potential to ravage our lives--and have already done just that to countless Americans.

From the Oregon lawyer falsely suspected of involvement with terrorism in Spain to the former University of Idaho football player arrested on the pretext that he was needed as a "material witness" (though he was never called to testify), this book is filled with unsettling stories of ordinary people caught in the government's dragnet. These are not just isolated mistakes in an otherwise sound program, but demonstrations of what can happen when our constitutional protections against government abuse are abandoned. Whether it's running a chat room, contributing to a charity, or even urging a terrorist group to forego its violent tactics, activities that should be protected by the First Amendment can now lead to prosecution. Blacklists and watchlists keep people grounded at airports and strand American citizens abroad, although these lists are rife with errors--errors that cannot be challenged. National Security Letters allow the FBI to demand records about innocent people from libraries, financial institutions, and internet service providers without ever going to court. Government databanks now brim with information about every aspect of our private lives, while efforts to mount legal challenges to these measures have been stymied.

Barack Obama, like George W. Bush, relies on secrecy and exaggerated claims of presidential prerogative to keep the courts and Congress from fully examining whether these laws and policies are constitutional, effective, or even counterproductive. Democracy itself is undermined. This book is a wake-up call for all Americans, who remain largely unaware of the post-9/11 surveillance regime's insidious and continuing growth.

"When citizens demand accountability in matters of national security, the government usually says: 'Just Trust Us.' That's not good enough for ACLU president Herman (The Right to a Speedy and Public Trial), who has written a sobering plea for official transparency in the age of terror. Weaving her analysis of constitutional law with humanizing portraits, she argues that ordinary Americans must involve themselves in preserving their own freedoms. Supporting evidence comes from those who have suffered most from the sweeping enforcement of PATRIOT Act provisions, including: an Idaho graduate student who spent 17 months in solitary confinement for serving as webmaster to a suspect site; a librarian in Washington who was asked by the FBI to hand over the name of every patron who had ever checked out a biography of Osama Bin Laden; and an Oregon lawyer whose fingerprints were incorrectly linked to the 2004 bombing of commuter trains in Madrid. Herman argues that these were not unfortunate mistakes, but rather, the inevitable result of a government operating with impunity. As critical of President Obama as she is of the Bush administration, Herman suggests: 'Tools as powerful as those in the post-9/11 arsenal are dangerous no matter who wields them.' "
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Since 9/11, the U.S. government has acted in a variety of ways--some obvious, some nearly invisible--to increase its surveillance and detention power over American citizens and residents. While most of us have made our peace with the various new restrictions on our civil liberties after 9/11, we have done it without really understanding what those restrictions are or the extent of their reach. Moreover, we tend to think that if the national security state overreaches, we shouldn't worry--the courts will come to the rescue and rein it in. In Taking Liberties, Susan Herman explains how this came to be. Beginning in late 2001, the Bush Administration undertook a series of measures, some of which were understandable and valid given the context, to expand federal surveillance authority. Yet as she shows through a series of gripping episodes involving ordinary Americans, they overreached to the point eroding basic constitutional liberties. Herman spells out in vivid detail why all Americans should be worried about the governmental dragnet that has slowly and at times imperceptibly expanded its coverage over the American public. The erosion of civil liberties doesn't just impact immigrants, Americans of Middle Eastern descent, or Guantanamo detainees, but any American who appears to be engaging in provocative political activity. Taking Liberties is a wake-up call for all Americans, who remain largely unaware of the post-9/11 surveillance regime's insidious and continuing growth.

Susan N. Herman became president of the American Civil Liberties Union in 2008 after serving on its national board for twenty years. A constitutional scholar and chaired professor at Brooklyn Law School, she is the co-editor (with Paul Finkelman) of Terrorism, Government, and Law and the author of The Right to a Speedy and Public Trial.

Introduction

PART I: DRAGNETS AND WATCHLISTS

Chapter 1 The Webmaster and the Football Player

The Material Support Dragnet

The Football Player

The Material Support and Material Witness Dragnets

Chapter 2. "Foreign Terrorist Organizations," Humanitarians,

and the First Amendment

The Iranian Democrat

Peacemakers and Humanitarians

Chapter 3. Charity at Home

The Campaign against Charities

Collateral Damage to Freedom of Religion and Association

Chapter 4 Traveling with Terror

Watching the Watchlists

Security Theater?

The Rights of Others

Chapter 5 Banks and Databanks

Financial Institutions as TIPSters

Watchlists and the Private Sector

Does It Work?

Collecting the Dots

Why Should I Care? - Privacy and Democracy

PART II - SURVEILLANCE AND SECRECY

Chapter 6 Gutting the Fourth Amendment

The Fourth Amendment and Terrorism

"Foreign" Intelligence Surveillance, Americans, and the Patriot Act

Mayfield v. United States Part II

The Secret Court and the One-Sided Litigation

A Job for Congress and the Courts

Chapter 7 The Patriot Act and Library/Business Records

American Librarians

Judicial Fumbling

Third Party Records and the Fourth Amendment

Reconsidering the "Library Provision"

Chapter 8 Gagging the Librarians

The Library Connection

Other Librarian Tales

Chapter 9 John Doe and the National Security Letter

Why National Security Letters?

John Doe and Victor Marrero

Loosening the Gag

Fourth Amendment Rights for NSL Recipients

First Amendment Rights for Internet Users

The Inspector General Expos�s 2007-2010

National Security Letters, the Fourth Amendment, and Congress

Chapter 10 The President's Surveillance Program

In the Halls of the Department of Justice

The Rubber Stamp Congress

Closing the Courthouse Doors

Post-FAA Litigation

The Secret Court Strikes Again

"What Else Is It That We Don't Know?"

PART III: RESTORING CHECKS AND BALANCES

Chapter 11 American Democracy - The President, the Congress, and the Courts

The View from the Oval Office - From Bush to Obama and Beyond

The Sleeping Watchdog

Secrecy and the Courts

The Eclipse of the Courts

Conclusion

Ordinary Americans

Restoring Balance