Archive for Wednesday, October 23, 2002

9-11 response disappointing

October 23, 2002

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I have been writing this column for slightly more than eight years. That translates to a bit more than 200 columns or about 350 typed pages, the length of a typical scholarly book. I usually spend Sunday afternoon and part of Monday thinking, reading and writing. On Sunday I read the New York Times, the Lawrence Journal-World, the Kansas City Star and the week-old London Times. (It takes that long to get it here in Lawrence.)

I read looking for ideas for my column, particularly on matters of law or higher education, the two subjects around which my daily life revolves. I also look to my teaching for ideas and inspiration. This is particularly true when I'm teaching a new course, as I am this autumn. My new course this semester is on the law of cyberspace.

All of these came together this week to incline me to look back on the legislative and legal responses of the past year to the horrific tragedy of 9-11 and the public demand for increased security in this country and around the world. I have to say, that after thinking about this for the past few days, I'm not sure how well we are, in fact, doing.

First, of course, we must think about the Patriot Act, a piece of legislation passed by Congress in the wake of 9-11 and designed to "untie" the hands of American law enforcement and intelligence. The legislation has made a great number of Americans quite uncomfortable and these are not of any particular political inclination. Over the past several days I've read criticisms of various parts of the law from such disparate groups as conservative Washington think tanks, the ACLU and the American Library Assn.

There are really two issues: the substantive provisions of the law and the procedure by which the act was adopted. As to the first, there can be no question that several provisions of the Patriot Act make a good deal of sense. I can see little reason to object to requiring various government agencies to cooperate with each other and share information. Nor am I particularly troubled by broadening the requirement for banks and other financial institutions to disclose to the government the names of people who deposit large sums of cash without explanation, particularly when it comes from outside the United States.

I am personally a bit more troubled by that part of the law that lessens the need for search warrants or that makes the government able to demand individual patrons' library records almost at will. I suppose that the theory behind this latter rule is that in this way the government will be able to track library patrons who borrow bomb-making manuals. My question, of course, is why a public library would have such books in the first place.

Similarly, I am troubled by the provisions in the act that make it far easier for government agencies to gain access to people's homes, businesses, and electronic communications without notifying them promptly that this has occurred.

But my biggest problem with the Patriot Act and its provisions is procedural. The act was adopted in great haste, long before Congress was able to investigate what the actual problems were that led us to be caught unawares on 9-11. Indeed, in the months since the act passed, we have learned of many such problems which the act does not specifically address. So, in effect, Congress passed legislation to solve a problem without knowing very much about what the problem was.

Further, it is going to be very difficult to judge how effective the act is. I do not know how we, the American public, can make any sort of informed judgment about its value and efficacy and, thereby, get rid of those parts that don't work, because information about so much of what the act prescribes will never be released to the public.

Indeed, I wonder whether even Congress, which will be required to revisit the act and vote on continuing many of its substantive provisions in 2005, will be able to find out enough to make a good decision when so much of what is now being done by law enforcement agencies pursuant to the act is classified information. I worry about a law drafted without knowing much about the problems it is supposed to solve and which cannot be evaluated in large part because of required secrecy.

The story on the other piece of legislation, the so-called "Homeland Security Act," I find even more troubling. It would seem that the bipartisan spirit that pervaded the federal government in the weeks immediately following 9-11 and which permitted Congress to act in unison if hastily in passing the Patriot Act has now all but disappeared. Congress and the White House just cannot seem to come to any agreement on key issues in the bill so that it can become a law. As a result needed legal changes designed to improve safety and defense are not being accomplished.

I wonder if other people are as puzzled by this as I am? It seems to me that the president, the leaders of both houses of Congress and just about every other elected official in American government has stated at one point or another in the past year that the safety and security of the American people is their most important job.

Since it is now more than a year since 9-11 and since the director of the CIA has told us that the risk of terrorism is as high today as it was immediately before 9-11, wouldn't it seem reasonable to have a Homeland Security Act instead of a stalled bill? It seems to me that by their own definition, a large number of our leaders are not doing their job. Further, they seem to be ignoring other rather pressing matters, such as finding positive ways to deal with a recessionary economy, because they are spending so much time bickering without result on security matters.

I'm a teacher and as a teacher I'm used to giving out grades. When I look at the Patriot Act, with its substantive and procedural problems, and I look at the continuing absence of a Homeland Security Act I become somewhat disenchanted with our present leadership. When I add to this the continuing lack of adequate security measures at airports (such as inspection of checked baggage) and other vital parts of our national infrastructure, I'd say the federal government deserves a "D."

And, I have to ask, is it going to get better? If it's not, perhaps, we need new leadership, ones who can be less concerned with politics and more with true leadership.

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