January 15, 2012


Susan N. Herman, Taking Liberties: The War on Terror and the Erosion of American Democracy (New York & Oxford: Oxford U. Press, 2011) ("New baselines are far less likely to be questioned once they have become familiar. The Patriot Act . . . built incrementally on rights-diluting provisions in Bill Clinton's 1996 Antiterrorism and Effective Death Penalty Act, which had come to seem normal by 2001. In 2012, when the FISA Amendments Act expires, will Congress take a hard look at whether this spying program, already over a decade old, should be continued, or will we have become accustomed to our reduced privacy and let the program slide into permanency? When now entrenched Patriot Act provisions come up for renewal, is Congress likely to do anything more than tweak a few provision--perhaps appeasing the vocal librarians or slightly easing the burden on nonprofit organizations? Congress is not likely to take on the job of seriously reexamining the effectiveness and cost of antiterrorism strategies unless voters want it done." "I have speculated that voters have not expressed more concern about those strategies because we have been kept unaware of the extent of their costs, and perhaps because we don't really know if post-9/11 strategies promising to keep us safe are actually important. Fear is a powerful motivator. But certainly another reason Congress is not hearing more outrage from constituents is that the brunt of the impact of our post-9/11 program has fallen on Muslims, a minority in the United States practicing a widely misunderstood religion and easily stereotyped as resembling the 9/11 hijackers. The stories in this book show quite clearly that the people who have suffered the greatest collateral damage . . . are Muslims. The milder impact felt by non-Muslim Americans--lost of privacy, occasional cooptation as government agents, and embarrassing experiences at the airport--may seem to many like an acceptable bargain. This view, of course, discounts the deeper and less visible damage the New Normal is doing to our constitutional principles, to our democracy, and to our way o f life. Nevertheless, as polling data suggest, people find it all to easy to bargain away liberty in the hope of gaining safety of the liberty belongs to someone else. Pew Center polls conducted between 20Italic01 and 2006, for example, show that more than twice as many respondents were in favor of allowing airport personnel to do extra checks on passengers who appear to be of Middle Eastern descent than were in favor of allowing the government to monitor their own telephone conversations, e-mails, or credit card purchases. A New York Times/CBS polls in January 2006 showed that 'respondents overwhelmingly supported [70%] email and telephone monitoring directed at 'Americans that the government is suspicious of;' they overwhelmingly opposed [68%] the same kind of surveillance if it was aimed at 'ordinary Americans.' A 2005 Gallop poll revealed that '[m]ore than half [of Americans polled] are in favor of subjecting all Arabs, including Arab Americans, to special security checks at airports" while only 48 percent favored requiring 'Arabs' to carry a special ID. A Gallop poll conducted in January 2010 showed that 71 percent of those polled felt that those who 'fit the profile' of suspected terrorists should be subjected to more intensive security checks before being permitted to board airplanes. "Why give up a dragnet that might possibly catch someone dangerous unless you care about the innocent people who predictably will be swept up? Beneath the attitudes these polls reveal seems to be an assumption that 'Arabs' or Muslims are presumptively guilty and that they are not like the rest of us. John Hart Ely, in his classic book Democracy and Distrust, points out that democracy is at it worst when it comes to protecting the rights of minorities--which is why politically insulated courts have an indispensable role to play in our constitutional democracy." Id. at 196-198. One of the under appreciated consequences of the Great Recession of 2008, and of its continuing lingering, is that the American people focus on their decreased economic and job security has caused them to almost completely ignore the decline in their civil liberties. Unless, of course, they have been actually caught up in--and are aware that they have been caught up in--the New Normal of the The Patriot Act and related antiterrrorism laws. We are increasingly living in an undemocratic police state. Ultimately, we have only ourselves to blame.).