Mark Alexander, a trial attorney and partner with the Gainesville, Ga. law firm Stewart Melvin & Frost, is a former prosecutor who focuses his practice today on civil litigation as part of the team of legal specialists at Stewart Melvin & Frost.
Question: From a legal perspective, what has been the impact of 911 on our personal liberties?
Mark: In the wake of 911, perhaps the most visible changes to our personal lives have been the tighter security measures at airports, as well as at big public gatherings such as concerts and sports events at stadiums.
As a result of 911, we have had to put up with such inconveniences as longer lines through airport security, removing our shoes for inspection, or going through pat-downs and full body scans.
While there may be some debate as to the extent that such security measures invade our privacy, the main impact has been more of a nuisance than a threat to our personal freedom.
In fact, in hindsight a decade later, most experts would say that the impact of 911 on our personal liberties has been relatively minor. While we have witnessed very little change in criminal law, what has changed is the reshaping of law enforcement and its mission.
Question: There has been a lot of debate about the Patriot Act that was passed immediately after the 911 attacks. Wouldn’t some people argue that this law went too far in restricting personal freedoms?
Mark: The Patriot Act definitely expanded the government’s surveillance powers and the scope of some criminal laws. But in truth, when you look at the Patriot Act from a historical perspective and comparison, the impact was relatively minor.
For example, the Alien and Sedition Acts of 1798 in this country – passed in the wake of the French Revolution. It clamped down on free speech, making it a crime to publish “malicious writing” against the government. It also increased government’s ability to deport suspicious aliens.
Other examples were the internment of Japanese-Americans during World War II and the federal investigations of suspected Communist sympathizers during the McCarthy era in the late 1940s and 50s.
Question: So how did the 911 attacks and the subsequent Patriot Act impact law enforcement?
Mark: Shortly after the 911 attacks, then-Attorney General John D. Ashcroft announced a “new paradigm” in law enforcement. Preventing terrorist acts, he said, was now more important than punishing crimes after the fact.
Under this new paradigm, the government took on much greater powers outside the country. So the story is much different when you move beyond domestic criminal law.
Most controversial example of this extended government power was the detentions of suspected terrorists at Guantanamo and the controversial interrogations.
We’ve also witnessed law enforcement make greater use of immigration laws to detain people suspected of terrorism. A 2003 report from the Justice Department’s inspector general even said that the usual presumptions of the legal system in this regard were turned upside down after the attacks.
In the decade after the attacks, the government also has become notably more aggressive in the use of informants and sting operations. Wiretapping of international communications also has been broadened.
The main point is that all of these increased law-enforcement tactics to combat terrorism were mostly based on existing laws, not radical changes in the law. The main difference has been law enforcement’s “new paradigm” of preventing terrorism before it happens as opposed to punishment after the fact.
The other main point is that this increased law enforcement effort – except for those extra security measures at the airport and other public places – has really had very little effect on you and me, the average citizen.
Nevertheless, you could get still into a big political debate as to how far the government has gone to fight terrorism at the expense of some innocents.
John Yoo, a law professor and a former Justice Department official in the Bush administration, recently made this observation in a New York Times article: “If you look at (911) historically, you might say, ‘I can’t believe we’re at war,’ when you see how much speech is going on.”
“Civil liberties,” Mr. Yoo says, “are far more protected than what we’ve seen in past wars.”