Trade-Offs

Both Parties Debate Whether Thwarting Terror Requires Limiting Freedoms

It's an argument that cuts across party lines.
Photographer: Daniel Acker/Bloomberg

When it came to their collective belief that America must be great and strong again, all nine candidates at the prime-time Republican presidential debate Tuesday took positions as alike as the red ties most were wearing on the Las Vegas stage. Sharp differences emerged, however, over how to get there.

Similar fault lines are likely to be on display Saturday night when Democratic presidential contenders gather in Manchester, New Hampshire for their third debate. One of the most contentious issues in the post-9/11 era—the extent to which civil liberties must be given up in order to root out terrorist threats—is back on the agenda following fatal acts of terror in Paris, France and San Bernardino, California. It’s a rare issue in the 2016 presidential race that is broadly non-partisan.

There are members of both parties who agree—and those who vehemently disagree—with civil-liberties advocates like Neema Singh Guliani, legislative counsel with the American Civil Liberties Union in Washington, D.C. “After a terrorist attack, there's a lot of pressure on government officials and Congress to do something,” Guliani said. “But sometimes that something is not effective and would have a long lasting and damaging effect on civil liberties and privacy.”

At his year-end press conference on Friday, President Barack Obama summed up the knotty dilemma for policymakers. “Because the Internet is global and communication systems are global, the values that we apply here oftentimes are ones that folks who are trying to come into the country are also benefitting from because they’re using the same technologies,” he said.  “We’re going to have to really review what we can do both technically as well as consistent with our laws and our values in order to try to discern more rapidly some of the potential threats that may be out there.”

On Tuesday at the Republican debate, U.S. Senator Rand Paul of Kentucky was the first to raise the issue. “The question,” he said, “is how do we keep America safe from terrorism?”

“Trump says we ought to close that Internet thing,” Paul continued, referring to the Republican front-runner Donald Trump. Then he pivoted to another rival, U.S. Senator Marco Rubio of Florida. “Rubio says we should collect all Americans’ records all of the time,” he said. “I think they're both wrong.” 

Trump argued that fencing off portions of the Internet is an appropriate measure to help combat terrorism. “You talk freedom of speech. You talk freedom of anything you want,” he said. “I don't want them using our Internet.” 

During the debate, Rubio and U.S. Senator Ted Cruz of Texas clashed on the same issue. CNN moderator Dana Bash, raising the subject of “how to balance surveillance with privacy and keeping Americans safe,” asked Cruz about his support for legislation, enacted in June, that made it more difficult for the government to access citizens’ phone records.

Cruz replied that the law, the USA Freedom Act, “strengthened the tools of national security and law enforcement to go after terrorists”—but first he said that “it ended the federal government's bulk collection of phone metadata of millions of law-abiding citizens.”

Rubio objected. “We are now at a time when we need more tools, not less tools,” he said, accusing Cruz of weakening the government’s surveillance ability. “And that tool we lost, the metadata program, was a valuable tool that we no longer have at our disposal.”

A parallel tension looms in the Democratic presidential contest, with U.S. Senator Bernie Sanders of Vermont the unlikely analogue to Cruz. On Tuesday, former U.S. Secretary of State Hillary Clinton, who has previously acknowledged that the public “felt betrayed” by the NSA program, made a call for stronger intelligence resources that would track possible terrorists.

She asked for the help of Silicon Valley tech firms in finding, for instance, a form of encryption that intelligence and law-enforcement officers would, when necessary, be able to crack.

Even before her remarks, Sanders tweeted: “I believe strongly we can protect our people without undermining our constitutional rights. I worry we’re moving to an Orwellian society.”

A New York Times/CBS News poll published last week showed that fear of terrorism is higher today than it has been since the weeks after the World Trade Center bombings on September 11, 2001. In response to those attacks, the United States entered murky, unwinnable war abroad, and at home passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or USA PATRIOT Act, which granted extensive surveillance powers to federal authorities. Among the tactics it authorized: the widespread collection of domestic phone records, a program revealed in 2013 by National Security Agency whistleblower Edward Snowden, and ruled illegal by a federal appeals court in May.

That same month, the Pew Research Center found that a majority of Americans “disapprove of the U.S. government’s collection of telephone and internet data as part of anti-terrorism efforts.”

Yet in another moment of aggravated anxiety and fear, politicians and presidential candidates are back to discussing whether contemporary terrorism might warrant curtailing civil liberties.

Since 1997, the Newseum Institute’s First Amendment Center has conducted an annual survey asking the American public whether it feels that the First Amendment provides too much freedom to society. “Every year about 20 percent of the population says they think the First Amendment gives us too much freedom,” said Ken Paulson, president of the center and the former editor of USA Today. “It’s routinely one in five.”

But, Paulson continued, “in the months following the attacks on the World Trade Center in 2001, that number jumped to more than 49 percent. Literally millions of American decided we had too much freedom because planes struck the World Trade Center and the Pentagon.” He said he anticipated that the results might be similarly high once again, in the wake of the Paris and San Bernardino attacks.

“I wouldn’t say anything runs along strict party lines,” Paulson said. “At a time when a significant percent of the population is frightened, all bets are off.”

“It’s interesting,” he added, “that the Republican Party tends to support limited government but seems more comfortable with government surveillance.”

Guliani of the A.C.L.U. warned that a “knee-jerk reaction” could “impact the rights of many if not all Americans.” She argued that the metadata program enacted after 9/11“wasn’t even effective. Independent oversight boards said this has never helped to stop an act of terrorism or even identify a suspect.” 

While suggestions like the ones Trump has made—to restrict Muslim travel and restrict Internet usage for certain users or areas —appear to affect only a limited number of people, they strike at the core of American society, argued Paulson of the First Amendment Center.

“It’s important to remember that the First Amendment and the Bill of Rights were designed to protect America’s minorities,” he said. “They were designed to ensure that all Americans and not just the powerful and not just the majority could enjoy the fruits of the nation.”

“Politicians are not asking, generally, the entire American people to sacrifice anything themselves,” Paulson added, “but it takes a toll on all of us.”

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