What has al-Qaeda done to our Constitution, and to our national standards of fairness and decency? Since September 11, the government has enacted legislation, adopted policies, and threatened procedures that are not consistent with our established laws and values and would have been unthinkable before.
On October 25, Congress passed the “USA Patriot Act” with only one dissenting vote in the Senate and sixty-six in the House. That statute sets out a new, breathtakingly vague and broad definition of terrorism and of aiding terrorists: someone may be guilty of aiding terrorism, for example, if he collects money for or even contributes to a charity which supports the general aims of any organization abroad—the IRA, for example, or foreign anti-abortion groups, or, in the days of apartheid, the African National Congress—that uses violence among other means in an effort to oppose American policy or interests. If the attorney general declares that he has “reasonable grounds” for suspecting any alien of terrorism or aiding terrorism in the broad sense that is defined, then he may detain that alien for seven days with no charge. If the alien is then charged with any, even a wholly unrelated, crime, and the attorney general finds that “the release of the alien will threaten the national security of the United States or the safety of the community or any person,” he may be detained for six months, and then for additional six-month periods so long as the attorney general continues to declare that his release would threaten national security or anyone’s safety.1
The Justice Department has now detained several hundred aliens, some of them in solitary confinement for twenty-three hours a day. None of them has been convicted of anything at all, and many of them have been charged with only minor immigration offenses that would not by themselves remotely justify detention.2 It has refused repeated efforts on the part of journalists, the ACLU, and other groups even to identify these detainees.3 So our country now jails large numbers of people, secretly, not for what they have done, nor even with case-by-case evidence that it would be dangerous to leave them at liberty, but only because they fall within a vaguely defined class, of which some members might pose danger.
The USA Patriot Act relaxes many of the other rules that protect people suspected of crime from unfair investigation and prosecution. It greatly expands the government’s power to conduct searches of the premises and property of citizens and aliens alike without informing them. Such secret searches were formerly permitted, pursuant to a special warrant for that purpose, only if the primary purpose of the search was to collect information about a foreign nation’s activities in this country. Now they are permitted if the primary purpose is to collect evidence of a crime that can be used in a prosecution, so long as intelligence-gathering…
This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!
Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.