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In the face of the Bush administration’s chilling and unprecedented assertions of executive power, it is easy to forget how terrorism had eroded civil liberties even before the attacks of Sept. 11, 2001. The fully revised and updated edition of David Cole and James X. Dempsey’s Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New Press 3d ed. 2006) reminds us that many of today’s abuses had their seeds in the relatively recent, pre-9/11 past. The book, which contains a new section on the post-9/11 era, provides a valuable overview of terrorism’s impact on constitutional rights during the past three decades, highlighting important, and often overlooked, connections between the president’s “war on terrorism” and previous restrictions on civil liberties. In the process, it demonstrates why a rights-respecting approach to fighting terrorism strengthens, not hinders, national security. As Terrorism and the Constitution explains, terrorism had supplanted communism as a principal justification for limiting constitutional rights by the early 1980s. Cole and Dempsey detail how the McCarthy era concept of guilt by association was resurrected to restrict constitutional freedoms in the name of counter-terrorism. Despite reforms enacted in the wake of the Church Committee’s post-Watergate investigation into the FBI’s notorious counterintelligence program and other domestic spying initiatives, the government started collecting “foreign intelligence” about suspected terrorist activities. Law enforcement increasingly conducted investigations based on free speech and association rather than on conduct with a nexus to any criminal activity. After 9/11, the administration would dramatically expand investigative activity through secret domestic surveillance programs by the National Security Agency, which operate without external checks and in defiance of existing statutes. While the current edition was completed before the recent disclosures about NSA spying, it provides a helpful context in which to view that emerging scandal. Groundwork laid 10 years ago The book charts how the anti-terrorism act of 1996, passed after the Oklahoma City bombing, laid the groundwork for many post-9/11 restrictions on free speech and privacy rights. The 1996 act, for example, criminalized providing “material support” to the lawful political or humanitarian activities of foreign groups designated by the secretary of state as “terrorist.” This law permits prosecution without proof that an individual actually supported, let alone was responsible for, terrorism, and is increasingly relied upon by prosecutors in terrorism cases. Rather than helping to fight terrorism, Cole and Dempsey demonstrate, it has often been misused to target protected First Amendment activity, as in the case of Sami al-Hussayen, a Saudi Arabian student at the University of Idaho prosecuted and ultimately acquitted for operating a Web site that simply linked to other Web sites. To be sure, the argument for the material-support bar has intuitive appeal: Since money is fungible, one more dollar that an organization like Hamas has to spend on charitable activities is one more it can devote to terrorism. But, as the authors point out, this argument falsely assumes that organizations engaged in a political struggle that uses both legal and illegal means will devote every marginal dollar to those illegal means. The book also documents the curtailment of immigrants’ rights during the last decade, and with good reason. Many anti-immigrant measures, such as the increased use of secret evidence and preventive detention, would become linchpins of the administration’s post-9/11 policy, as demonstrated by the treatment of “enemy combatants” in the United States and at Guant�namo Bay, Cuba. The book’s final section provides an overview of post-9/11 assaults on civil liberties. By now many are familiar, including the detention of “enemy combatants,” racial profiling, increased restrictions on speech and privacy rights under the Patriot Act, and enhanced use of data-mining techniques to collect, collate and analyze information in search of patterns of suspicious behavior. Terrorism and the Constitution, however, puts these abuses in a broader framework, suggesting how they reflect a continuation of previous civil liberties violations as well as a significant break with vital limits on executive power. The book’s overriding message is one too often ignored in political and legal debates: that sacrificing civil liberties does not make us safer. The mass round-up and prolonged detention of immigrants after 9/11, for example, led to some of the most egregious civil liberties violations since the notorious Palmer Raids of 1918-1921, but to no terrorism prosecutions. Instead, this mistreatment of hundreds of immigrants, often based on nothing more than minor visa violations, undermined support for law enforcement in Muslim and Arab communities. As the authors demonstrate, requiring that law enforcement investigations be tied to suspected criminal activity, as opposed to legitimate speech and association, promotes more effective counterterrorism policy. The president’s decision to treat terrorism as a war, rather than as a crime, has further eroded the constitutional restraints that, in the end, make us both safe and free. Jonathan Hafetz is an attorney in the Liberty and National Security Project at the Brennan Center for Justice at New York University School of Law.

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