Thank you for sharing!

Your article was successfully shared with the contacts you provided.
From telecommunications to immigration, the nation’s legal landscape is expected to undergo swift and significant changes in the aftermath of the terrorist attacks on American soil. “I think that clearly the challenge here is going to be how we increase security and provide Americans with a sense that the country is safe without treading on civil liberties,” said Ronald Klain of the Washington, D.C., office of O’Melveny & Myers, a former Clinton administration official. “My guess is most Americans’ balance on security and freedom shifted after the attacks,” said Klain, who was chief of staff to Attorney General Janet Reno. “How much they’re willing to give up of their civil liberties remains to be seen.” Klain and others, on both ends of the political spectrum, believe that tradeoffs for greater security are inevitable. Changes will be more visible than anything the government has done in the recent past, they predicted. These tradeoffs, they suggest, will come primarily in three areas: airport security, the ability to monitor Internet communications and border security. Two civil liberties advocates, former Acting Solicitor General Walter Dellinger and Harvard Law Professor Alan M. Dershowitz, would add a fourth area. The U.S. government’s anti-assassination policy, embodied in executive orders since the Ford administration, is likely to be revoked, they said. “There are times when the U.S. government is forced to consider using military force or other operations that may endanger relatively innocent people in order to avoid violating the anti-assassination policy,” Dellinger said. “That makes no moral sense to me.” The American government, Dershowitz predicted, “will emulate Israel in this fashion and permit targeted assassinations of future terrorists.” The public demand for security will affect “virtually everything the government does in terms of intelligence gathering and assessment, immigration and telecommunications,” said David C. Vladeck, director of the Washington, D.C.-based Public Citizen Litigation Group. “These are very sobering times, and I think the temperament of the country will tolerate the kind of measures we might at one point have thought intolerable.” ANTI-TERRORISM ACT OF 1996 The key modern-era response to domestic terrorism was the 1996 Antiterrorism and Effective Death Penalty Act. Although driven by the Oklahoma City bombing, much of the act was directed at foreign threats. It authorizes the president to withhold financial aid from countries that aid terrorist states and to use “all necessary means” to destroy the international terrorist infrastructure. Two provisions raised the most civil liberties concerns. One authorized the deportation of aliens based on secret evidence. Another criminalized giving material support, broadly defined, to any group designated a terrorist organization by the secretary of state. “The first one did away with due process, and the second indulged in guilt by association,” said Professor David Cole of Georgetown University Law Center. Those provisions have not been widely used, and some enforcement efforts have been rebuffed by courts. No pending cases involve the use of secret evidence, Cole said, and only two indictments have been brought involving material support. “Congress often responds in symbolic ways that don’t have a necessary connection to meaningful security,” he said. “But I think the mere existence of these laws does have a significant chilling effect on fully legitimate political activity.” Cole said that after horrific attacks, the lawmakers virtually always underestimate threats to civil liberties and overestimate security advantages. With that history in mind and given the scale of the Sept. 11 attacks, Cole said that Congress and the president may seek to do the following in coming weeks: � Make membership in a terrorist organization a ground for deportation. � Increase enforcement of the terrorism law’s secret-evidence and material-support provisions. � Enact new anti-immigration laws. The 1996 law should not be expanded, said conservative constitutional law scholar Douglas Kmiec of Catholic University School of Law. “We might see similar legislation passed which in the short term allows Congress to think it has done something but in calmer times may be invalidated,” he said. “This is the story of World War II and the Japanese-American internment and Oklahoma City. When we’re frightened, we’re frightened of the stranger.” The stranger in this case has a Middle Eastern cast. Kmiec, Cole, Dershowitz, Klain and others predicted more use of racial and ethnic profiling at airports. “There already are a lot of complaints from the Arab-American community that they are subjected to racial profiling when boarding airplanes,” Klain said. Kmiec said, “You’re not going to succeed very far on Capitol Hill with the argument that reasonable amounts of profiling can’t be done to identify terrorists.” ELECTRONIC SURVEILLANCE Perhaps almost as inevitable as the increased use of profiling at airports is the likely enhancement of law enforcement’s authority and ability to gather intelligence through electronic surveillance. A. Michael Froomkin, a professor at the University of Miami School of Law, thinks the attacks may revive debate over encryption of e-mail and other communications. In a 1995 law review article, Froomkin predicted: “In the wake of a great crime, perhaps by terrorists or drug cartels — the detection of which could have been frustrated by encryption — that which today looks clearly unconstitutional might unfortunately appear more palatable. Big Brother may yet look more comforting than the reigning criminal archetypes.” “I hope I’m wrong about this one,” he said in an interview. Early reports suggest that instructions for the attack may have been encrypted and hidden in public Web sites. Already revived is a proposal to require that computer technology include keys that the government can use, secretly, to decode encrypted information in certain circumstances. In a floor speech two days after the attack, Sen. Judd Gregg, R-N.H., called for a global ban on encryption products without back doors for government surveillance. The Clinton administration abandoned the idea after deciding that it wouldn’t help security, said a Reagan era official. Instead, said Kenneth C. Bass III, ex-counsel for intelligence in the Justice Department, expect more wiretapping and Internet surveillance. No additional legal tools are needed, said Bass, now at Washington, D.C.’s Venable firm. “The ability of law enforcement, particularly the FBI, to surveil the Net has been addressed by the Electronic Communications and Privacy Act, for example, and by some other issues related to the Foreign Intelligence Surveillance Act,” he said. “In the Aldrich Ames spy case, they basically bugged Ames’ computer with keystroke capturing devices done pursuant to the Foreign Intelligence Surveillance Act.” That law, he said, covers international terrorism and is specifically designed to deal with quasi-governmental groups. Bass said he expects more use of the FBI’s controversial Carnivore program. Carnivore is installed at the facilities of an Internet service provider and monitors all traffic moving through it. The FBI claims that the system delivers only information that it was configured to obtain lawfully. Reports last week said that the FBI had approached some service providers about installing Carnivore. Bass also predicted “much more heated debates” in Congress over anonymity on the Internet. “I think the political pressures this tragedy is going to provoke will lead Congress, if not other lawmaking agencies, to be less receptive to claims of broad anonymity,” he said. Privacy advocates must try to ensure that any additional measures bear a strong relationship to what actually happened, said Cindy Cohn, legal director of the San Francisco-based Electronic Freedom Foundation. “In the aftermath of Oklahoma City, we heard calls on Capitol Hill to tightly control encryption technology,” she said. “There was no encryption technology used in the Oklahoma City bombing.” Cohn also foresaw debates over ECHELON, an international system of surveillance of electronic messages and telephone calls. “The focus is on the U.S. being able to request the ability to listen in on e-mail conversations between foreigners,” she said. “It allows governments, not just the U.S., to make government-to-government requests to do surveillance.” Dellinger, the ex-government lawyer, said, “I’m not at all sure we have in place everything we need, particularly to do electronic surveillance of e-mail and other communications. Our ability to monitor will be outdated unless we improve it, and I think it can be done with proper safeguards.” Arguments for reversing the anti-assassination policy are understandable in light of the one real change that has occurred as a result of the attacks on Sept. 11, Kmiec said — President Bush’s announcement that states that harbor terrorism will be considered the enemy. International law traditionally has drawn a distinction between nonstate actors, such as terrorists, and states. “We have now collapsed those categories,” Kmiec said. “We have seemingly taken the posture that Afghanistan, if harboring bin Laden, is fair game. That is a dramatic change in law if we implement it.” He was referring to Osama bin Laden, whose international network is suspected as the perpetrator of the attacks. There was a wide consensus that the landscape has changed. Senate Republican Leader Trent Lott of Mississippi said the day after the attacks, “You know, when you’re in this type of conflict, when you are at war, civil liberties are treated differently.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.