Freedom and Security in the Homeland

Almost from the moment that the planes slammed into the World Trade Center, the Pentagon and a Pennsylvania field, discussion has swirled about the issue of making the United States more secure. For several months now, this discussion has focused on President Bush’s proposal for a Department of Homeland Security. And much of this discussion has focused on organizational issues. Can anyone manage a department comprised of 22 different federal entities, 170,000 employees and a range of activities from protecting our computer networks to issuing visas abroad? Should the President have the authority to circumvent civil service rules as he and his Secretary of Homeland Security try?

Much more is involved in homeland security than this department and the organizational questions associated with it, however. The fundamental issue is the relationship between freedom and security. Consider that as a consequence of the attacks on September 11, the President has asserted the right to declare individuals enemy combatants. Once so designated, these individuals lose rights that are one of the foundations of our free society. Enemy combatants can be held indefinitely without a trial and without access to a lawyer or the courts. The President can even designate American citizens as enemy combatants and has done so already in two cases. The government claims that given the threat we face, such a sacrifice of freedom is necessary in order to maintain our security. Is this true?

We can begin to answer this question by considering the threat that prompts this new concern with homeland security. We are vulnerable to the violent clandestine activity that is terrorism because we are a free and open society. We allow individuals the maximum freedom compatible with the minimum order necessary for a society to function. With this freedom, individuals can do all sorts of things, including plotting with the like-minded to carry out violent and even potentially catastrophic acts. This threat, of course, needs to be taken seriously. Especially since, as terrible as the attacks of September 11 were, they could have been worse. Chemical, biological or nuclear agents could have been used. Al Qaeda, we now know, was actively seeking these more destructive weapons. But terrorism as represented by the attacks of September 11 is not the only or necessarily the gravest threat we face. Since the rise of terrorism after World War II, terrorists have often had the support of states. In return, they have sometimes acted on behalf of states, as auxiliary forces, to inflict pain or the threat of pain in an effort to get another state to do something that the state sponsoring the terrorism wanted it to do. The government of Syria, for example, has sponsored terrorist groups in the past that have attacked Turkey and Israel as part of its effort to manage its affairs with those countries. In the future, we may anticipate something more dangerous. Having seen the effectiveness of terrorism, states that cannot stand up to our military power may consider undertaking such acts on their own. This would result in something we have not yet seen, the full power and resources of a state behind violent clandestine attacks in the United States.

Because we are both a free and open society and both states and non-state groups may have a motive to use violent means against us, we are likely to live under the threat of clandestine violence for some time to come. This possibility is one reason why we must relentlessly go after terrorists now. The hope is that by hunting down terrorists, we will deter others, including states, from conducting such attacks in the future. To its credit, the President’s National Strategy for Homeland Security (available at www.ashbrook.org/articles/hls.pdf) makes clear, although it should do so more forcefully, that securing American citizens at home means going after terrorists and those who support them abroad.

Yet it is quite possible, indeed likely, that deterrence will not work. Consider the issue of state use of clandestine violence. The leaders of a state in a desperate situation may recognize that they face almost certain destruction if they attack the United States or one of its allies yet decide to undertake such an attack because destruction at our hands is less certain than the collapse of their power if they take no action. Prior to launching the attack on Pearl Harbor, for example, the Japanese leadership recognized that victory over the United States in a prolonged war was not likely. Yet doing nothing, they felt, would leave Japan a third-rate power. They decided to strike what they hoped would be a devastating blow that would lead to the demoralization of the United States and a negotiated peace favorable to Japan at the end of a short war. Saddam Hussein may have felt himself in a similar situation before invading Kuwait. As difficult as it was likely to be to maintain control of Kuwait, his loss of power and probably very painful death at the hands of his domestic enemies was more certain, so he was not deterred from invading Kuwait. Our enemies in the future may find themselves in situations similar to those of the Japanese and Saddam Hussein.

If deterrence cannot be relied upon to prevent attacks, then we must increase our efforts to detect threats, reduce our vulnerability to them, minimize the danger they pose and increase our ability to recover from any attacks that might occur. This is what the homeland security strategy purports to do. Those parts of the strategy directed at detecting possible attacks and reducing our vulnerability to them have been criticized as, in effect, destroying what they mean to preserve. The Cato Institute has made this criticism in a paper entitled “Breaking the Vicious Cycle, Preserving our Liberties While Fighting Terrorism.” (This report is available at www.ashbrook.org/articles/vicious_cycle.pdf.)

The Cato Institute’s criticism is that every time a significant terrorist attack occurs in America, legislators hurriedly approve changes to our laws in the name of improving our ability to detect such attacks before they occur. These laws transfer power to the Federal and state governments and thus of necessity, according to the Institute, reduce the freedom of Americans. In particular, they increase the power of government to gather and hold information about citizens by monitoring their activities and communications. Such legislation was passed following the original attack on the World Trade Center in 1993 and following the attack on the Federal building in Oklahoma City in 1995. Yet, since, as everyone admits, such increased governmental power does not assure that attacks will not occur again, we are involved in the “vicious cycle” of giving up liberty without gaining security. The Institute fears that if this cycle is not broken, the very foundation of a free society in the United States may be destroyed. Its primary evidence of this danger is the expansion of Federal power since September 11, particularly the President’s power to suspend the rights of American citizens.

The Cato Institute makes a strong argument and the fact that two American citizens are being held solely on the authority of the President and without recourse should hold everyone’s attention. But the Institute’s analysis is not without problems. For example, it argues that we could reduce the threat we face by reducing our involvement overseas because, it asserts, such involvement gets people mad at us and leads to terrorist attacks. In fact, those involved in al Qaeda are opposed not only to our policies and actions but to what we are, a people who live in freedom. This they take as an offense against Islam. We cannot reduce this threat without reducing our freedom, the exact opposite of what the Cato Institute wants.

Another problem with the report is its assertion that the occurrence of terrorist attacks after we have increased the power of the government, and thus reduced our freedom, means that this decrease in freedom has not made us more secure. But this does not make sense. Increased power may help the government disrupt plots and make us more secure, even if it does not enable the government to disrupt all plots and make us perfectly secure. Recent arrests in Detroit and Buffalo of individuals accused of supporting al Qaeda may indicate that these increased powers are having some effect. In addition, some of the most damaging attacks, such as those with mass casualty weapons, may require a level of logistical effort that the new surveillance regime may detect but would have gone undetected under the old one. If preparations for such an attack were uncovered, even if less damaging ones were not, we would have to conclude that we were more secure.

Although some of its arguments may have problems, the Cato Institute report rightly insists that not only our security but our freedom is at issue in any strategy for homeland security. This is particularly true since the President’s homeland security document speaks of “our enduring vulnerability.” Are we to assume then, that the abridgements of our freedoms since September 11 are to be enduring as well? If so, does the homeland security document reassure us that the Bush administration and the Federal government more generally understand that both freedom and security are at stake?

We can begin with the fact that the administration has crafted two different documents, one focusing on foreign activities, the other on domestic, that lay out its plans for our security. That the administration has segregated its foreign and domestic security strategies is evidence that it recognizes and respects the distinction we have traditionally maintained between the police power, the use of force by government at home, and military power, or the use of force abroad. Similarly, the strategy for homeland security insists that the actions of the national government will respect our federal system, and in particular, the Tenth Amendment to the Constitution that, in the words of the strategy document, reserves to each state “substantial independent power with respect to the general welfare of its populace.” In addition to recognizing traditional limitations on the power of the national government, the strategy document also explicitly recognizes that the homeland security strategy must do more than provide for the physical security of Americans. It must protect political, economic and individual liberties.

While these indications of a concern with liberty are welcome in a document addressing domestic security, they are not all that reassuring. Except for the reference to the Tenth Amendment, the indications are either implicit or merely verbal. And, until recent Supreme Court rulings paying it some attention, the Tenth Amendment has been largely moribund for some decades now. It seems a thin reed on which to rest our freedom.

The larger problem with these indications is that while they bow in the direction of freedom they give no hint as to how conflicts between security and freedom might be resolved. On this all-important point, the strategy for homeland security is short but to the point. The one paragraph devoted to this issue argues that we might be able to render ourselves secure if we gave up all our freedom. Since this would put an end to the American way of life, the strategy document concludes, as does the Cato Institute report, that we must live with “some level of terrorist risk as a permanent condition.” It continues:

We must constantly balance the benefits of mitigating this risk against both the economic costs and infringements on individual liberty that this mitigation entails. No mathematical formula can reveal the appropriate balance; it must be determined by politically accountable leaders exercising sound, considered judgment informed by top-notch scientists, medical experts, and engineers.

This paragraph is significant for a number of reasons. First, it recognizes that while security may be necessary if we are to be free, it is also the case that security and freedom can be competing goods and that some optimal balance between them is what we must seek. It forthrightly states that this balance can only be reached through the judgment of political leaders and not the calculations of experts. Because of the technical nature of the issues affecting the proper balance between security and freedom, the advice of experts is necessary but responsibility rests with those who are elected, with those who are “politically accountable.” In raising the issue of accountability, the strategy document offers perhaps the only real standard by which we can determine if the balance between security and freedom has tipped decidedly against the latter. As long as we can vote the President out of office in a free and fair election, then we retain the minimum necessary to consider ourselves a free people. Lincoln felt justified in suspending habeas corpus during the Civil War, but he did not suspend the Presidential election in 1864.

While the strategy document’s discussion of balancing security and freedom is short, it gives the only possible answer as to how this balance should be struck: politically accountable judgment. The strategy ultimately says in effect, therefore, that it is the American people themselves who hold the final responsibility for setting the balance between freedom and security, since they hold accountable the leaders who choose between the two. If this is so, and if it is, as it should be, an important objective of the strategy for homeland security to see that this balance is properly set, then the strategy should lay out a plan for engaging the American people in this task by encouraging and promoting appropriate civic education. That it does not must be counted a major failing. Or perhaps we should conclude, rather, in the spirit of the Cato Institute report, that in failing to prescribe a plan for engaging the American people, the strategy for homeland security pays the greatest respect to freedom by leaving this all important civic education in the only place where it is safe, in the hands of a free people.

David Tucker is a Member of the Board of Advisors at the Ashbrook Center for Public Affairs at Ashland University and an Associate Professor of Defense Analysis at the Naval Postgraduate School. He is the author of Skirmishes at the Edge of Empire: The United States and International Terrorism. The views expressed here are his own and do not reflect the position of the Naval Postgraduate School, Navy Department, or Department of Defense.