In Taking Liberties, Professor Susan Herman argues that the government’s post-9/11 antiterrorist tactics, including provisions of the USA Patriot Act, have victimized innocent Americans and have the potential to harm many more. Moreover, she contends that our fundamental constitutional rights and even our democracy itself is at risk. The Patriot Act, enacted in 2001 only six weeks after the terrorist attacks, expanded the government’s surveillance and enforcement powers without real hearings or debate. Those measures have remained in force, notes Herman, despite the fact that we still have not had a serious evaluation of their impact and effectiveness.
Ten years later, she says, “the beginning of the second post-9/11 decade is a good time to start a serious reevaluation of our approaches to fighting terrorism and to expose and question some underlying assumptions that may not be serving us well.”
In her book Herman focuses on a range of entities affected by the Patriot Act, including charities, libraries, financial institutions, and also on surveillance systems that jeopardize privacy and individual rights. Herman offers examples of how the Fourth Amendment is “gutted” and how American democracy has suffered from a loss of checks and balances among the three branches of government.
Throughout her book she offers examples of how blacklists and watchlists have kept people grounded at airports and stranded American citizens abroad, and how the FBI has used National Security letters to demand records about innocent people from libraries and Internet service providers without ever going to court. Government databanks now brim with information about every aspect of citizens’ private lives, while efforts to mount legal challenges to these measures have been stymied by procedural barriers like the state secrets privilege and distorted standing and immunity doctrines. Whether it’s running a chat room, contributing to a charity, or even urging a terrorist group to forego its violent tactics, activities that should be protected by the First Amendment, she argues, can now lead to prosecution.
“Constitutional rights like the First Amendment freedoms of speech, association, religion, and access to the courts, Fourth Amendment privacy rights, due process, and equal protection rights should not just be written off as regrettable casualties of a metaphorical War on Terror,” she says. Instead, Professor Herman argues that the courts and Congress should fully examine whether these laws and policies are constitutional, effective, or even counterproductive.
Read more about Professor Herman’s book in The New York Times, Reuters, The American Lawyer, CNBC, and Reason.
Listen to an interview with Professor Herman.