WASHINGTON, Nov. 23 (UPI) -- Actions taken by the administration of President George W. Bush and Congress since Sept. 11 in the effort to combat terrorism effectively erode individual freedoms while exceeding the historical powers assumed by past presidents in times of national emergency, according to a new report from a New York think tank.
Despite their intent, these actions also hold little prospect of improving the chance of stopping terrorist threats, Stephen J. Schulhofer, professor of law at New York University writes in his report, "The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11." The report was published by the liberal Century Foundation.
"The issues (of crisis) that have come around in the past are not strictly comparable to the ones we face now, but much of what has been attempted by the Bush administration goes far beyond previous actions," Schulhofer told United Press International.
In his report, Schulhofer writes that many of the actions taken by the Bush administration -- such as the detention without basic constitutional rights of American citizens suspected of cooperating with al Qaida -- have given the White House the power to act unilaterally without oversight from the judicial and legislative branches.
He also said that these changes and those enacted by Congress have come about with minimal scrutiny from the public, press and even Congress, even though some of them could hinder homeland security efforts.
On Tuesday, the Senate passed the bill to create the Department of Homeland Security, which will involve the biggest reorganization of the federal bureaucracy since the creation of the Department of Defense after World War II. The newly created department will incorporate 22 existing federal agencies -- including the Secret Service, the Coast Guard and the National Infrastructure Protection Center -- under one roof.
The measure also includes several provisions that have civil liberties advocates concerned, such as the development of a new data analysis agency that will have an as-yet-undefined authority regarding surveillance, wiretaps and investigation.
One last-minute addition to the bill would expand the ability of law enforcement agencies to gain access to private e-mail and information about websites visited through private Internet accounts.
The law also gives federal agencies new authority to collect and mine data on individuals and groups from personal, corporate and government records.
In addition, the Pentagon also acknowledged Wednesday that it is working to develop a new information-gathering system that will comb arrest records, purchases of guns, chemicals or airline tickets, credit card records, passport applications, driver's licenses and other data for patterns indicating terrorist activity.
According to Schulhofer, the Homeland Security Agency reorganization, provisions of the USA Patriot Act and Bush administration movement toward holding suspected terrorist indefinitely without charges all threaten individual liberty.
He said that many of these policies circumvent the constitutional rights of individuals and undermine the checks and balances of our system of government.
"The attempt to detain Americans and then treat them as prisoners of war, even when they were arrested on U.S. soil, is virtually unprecedented," said Schulhofer, noting that this did occur to some extent during the civil war, but not since.
"There is a kind of historical amnesia and a politically driven effort to legitimize an environment where the president is insulated from criticism," he said. "The idea that is it unpatriotic or un-American to question what the President does is unfortunate. That is not the historical pattern."
For example, he said that when President Harry Truman seized domestic steel mills in the early 1950s to support the Korean War effort, a resolution was introduced in the House of Representative calling for his impeachment. The Supreme Court ultimately held that Truman's move was unconstitutional.
He added that whatever marginal value is gained from curtailing the rights to due process of Americans held as enemy combatants must be weighed with the enormous risk such curtailments present to individual freedom. He also said that denying detainees access to a lawyer could actually work against law enforcement efforts, because it limits the possibility of plea-bargaining as a means to access information.
But Paul Rosenzweig, senior legal research fellow at the center for legal and judicial studies at the conservative Heritage Foundation, said that Schulhofer's arguments ignore the non-public role of many of the administration's policy decisions.
"Most of what we do in terms of these things is not entirely law enforcement and is meant to be preventive anti-terror, anti-foreign intelligence, and enemy combatant moves," he said. "So we (the public) don't often see the results."
Rosenzweig added that Schulhofer's historical analysis is off the mark.
"This administration' reaction to the war is much more moderate than many of the (past) administrations," said Rosenzweig.
He pointed to the alien and sedition acts of the 1790s and the internment of Japanese-Americans during World War II as more extreme restrictions on civil liberties.
He added that such restrictions have historically always been of limited duration.
"These actions don't become permanent, he added. "When crisis passes, we return to balance, to the traditional standards of civil liberty and limited government. The Bush administration's push on the pendulum this time around is pretty modest; it is certainly not as far as the internment of citizens or suspensions of habeas corpus."
Schulhofer said that such arguments ignore the fact that the battle against Islamic terrorism is an open-ended one with no sign of resolution.
"Because it is not a temporary emergency, we cannot think that we can play fast and loose with the Constitution," he said. "This danger will likely be with us for the rest of our lives. In that sense you want to give due weight to the threat and you want to be careful to recognize that if you do accept change, it is a possible change for our society permanently."
Schulhofer was also highly critical of the new homeland security agency and changes that the law will bring to civil liberties.
"My feeling is that this entire debate has very badly distracted us from the proper priorities," he said. "The most important thing we need above anything else is more resources and the Bush administration seems resolute that there will not be any budgetary increases."
He also said that by absorbing agencies like the Immigration and Naturalization Service and others that have not effectively communicated in the past with the FBI when they were together under the Department of Justice, the reorganization also limits agency cooperation at a time when it needs to be expanded.
Schulhofer also said that although the wider surveillance capabilities granted by the bill would provide more information, law enforcement agencies are already understaffed and have more information than they can process.
Robert Higgs a senior fellow in political economy at the Independent Institute, told United Press International he also believes the homeland security reorganization will be less than effective.
"I think the homeland security bill contains many unfortunate provisions," said Higgs. "As things stand right now the Homeland Security Department is not an auspicious development for liberty."
He said that one major problem is that the reorganization will effectively make each of the agencies involved less accountable than before, because they will be under an immense new bureaucratic structure.
Higgs believes that despite some intense public criticism, most people simply accept the government rationale for curtailing civil liberties until something happens to draw their attention to the limits of such policy, such as another large terrorist attack.
"I think that will eventually cause people to question the efficacy of the measures the government has taken," he said. "This is a situation, however, in which logic doesn't operate and fear prevails. In the short run people always fall for this bogus promise -- that the government will protect them -- whether it has substance or not."
He said that it would probably take an administration attack on a powerful person or group -- something on the level of the Watergate scandal -- to awaken the public to the negative impact of the policies enacted over the last year.
"As long as you attack people who are marginal, like immigrants, Muslims and people with unpopular political views, the government has a good chance of getting away with its suppression of liberty no matter how draconian," said Higgs. "It is when (government) abuses its power and uses it against people who have the ability to fight back through official channels and the political process that something is likely to happen."
