| 摘要 | Two years into the war against terrorism, the Patriot Act has become even more controversial than at its birth. Democratic presidential candidates have claimed that the law is unconstitutional and ought to be repealed, while Atty. Gen. John Ashcroft has barnstormed the country accusing its critics of zealotry and exaggeration. Civil liberties groups, such as the ACLU, have brought lawsuits challenging the act’s constitutionality. Cities have refused to cooperate with efforts to enforce the act.
Much of this controversy, however, is beside the point.
Although it cannot be denied that the Patriot Act expands government power to conduct surveillance of suspected terrorists within the United States, its central provisions only modify a 25-year-old statute, the Foreign Intelligence Surveillance Act. FISA, not the Patriot Act, created the system of secret courts, classified hearings and secret warrants that allows the government to place covert wiretaps on or intercept the e-mails of those suspected of presenting a national security threat to the United States.
The Patriot Act made only two significant changes to this regime: It changed the standard for granting a FISA warrant to allow law enforcement and intelligence personnel to cooperate more closely in using the fruits of FISA surveillance, and it brought within the warrant’s reach tangible items, such as credit card receipts and banking records.
The Patriot Act’s other modifications updated FISA for modern technologies, such as allowing surveillance of a single target suspect, rather than requiring a warrant for each individual phone line, cell phone and e-mail account.
These changes represent the evolutionary adaptation of existing laws to developments in international terrorism and technology. They are not a revolutionary effort to confront the challenges presented by the new terrorism revealed by the Sept. 11, 2001, attacks. No court has rejected these amendments, and, in fact, in 2002 a special court of federal appeals judges upheld the change in the FISA standard that allows more cooperation between the law-enforcement and intelligence communities.
While the Patriot Act makes useful improvements, it is a mistake to believe that it marks a significant change in the way the government fights terrorism. In fact, it may have the opposite effect by lulling us into an unwarranted sense of security.
Catching Spies
FISA was designed to counter Cold War espionage by the Soviet Union and its allies. Its surveillance provisions reflected concerns about foreign embassies and spies. Our political system’s first legislative reaction to the threat posed by the Sept. 11 catastrophe, which demonstrated that a violent non-state terrorist organization could launch massive, surprise attacks on civilians within the United States, was merely to make amendments to a law designed to catch Soviet spies.
Military historians say that generals fight the last war. Politicians and government officials have the same problem.
The Patriot Act is the legal equivalent of the Maginot Line, a set of fixed defenses built by the French after World War I to stop a German invasion.
The French generals were trapped in an obsolete paradigm of military strategy. They expected World War I-style trench warfare, not the blitzkrieg that came. Rather than being trapped by Cold War ways of thinking, our political leaders should be considering new, revolutionary alternatives that directly address the threats posed by the new terrorism.
Previous U.S. national security efforts have been directed at nation states–such as the Soviet Union, and, before that, Germany, Italy and Japan–all of which fielded armed forces, defended territory and protected civilian populations. Our enemies operated as we did, attempting to expand their control over territory by military force or political coercion.
In contrast, Al Qaeda is a non-governmental organization with covert cells of operatives that hide among civilian populations and operate by launching surprise attacks to kill large numbers of civilians. They have no territory to defend, no population to protect, no infrastructure or armies in the field to attack. They are products of technologies, ideologies and global dynamics that were unknown when FISA was enacted 25 years ago.
But this kind of terrorism is not wholly unprecedented, and, in debating counterterrorism strategy, we should start by asking how other states have dealt with longstanding, serious terrorist problems. For example, Israeli counterterrorism strategies have included assassination, collective sanctions, including the demolition of the homes of suicide bombers, detention of suspects without charges for lengthy periods of time and aggressive interrogation techniques. Other liberal democracies, including Italy, Germany and Britain, have not gone as far, but have used similar strategies in their battles against terrorism.
Not So Foreign
While these strategies seem foreign to American traditions, news reports have suggested that U.S. forces have tried some of them in recent years. Targeted killings have been used against Al Qaeda and Iraqi military leaders. House demolitions have occurred in Iraq. Detentions without criminal charge have occurred in the United States, albeit mainly of illegal aliens. Aggressive interrogation techniques–including sleep deprivation and disorientation–reportedly have been used against captured Al Qaeda leaders abroad.
This kind of aggressive action has ample historical precedent.
In World War II, the United States targeted cities with the intention of killing thousands of civilians in order to demoralize the citizenry and undermine support for the government. American strategic doctrine during the Cold War treated the killings of millions of innocent Soviet citizens as an appropriate response to a Soviet first strike. In Vietnam, U.S. soldiers destroyed villages believed to be harboring Viet Cong.
Sanctions Hit Hard
Collective sanctions are not just a military strategy; they have been used frequently during peacetime, though the tactic is known under the anodyne label of “economic sanctions.” Economic sanctions against Iraq, for example, resulted in the deaths of thousands of innocent civilians. Though the suffering of Iraqi civilians was less visible, its purpose was no different from that of killing German and Japanese civilians during World War II.
The idea was to pressure citizens into withdrawing support for their governments.
Targeted killings, collective sanctions, preventive detention and aggressive interrogations often are effective in countering terrorism, but they also can fail. They might be abused, and they might backfire by generating public indignation at home and abroad.
Our point is not to recommend any of these measures but to shift the public debate away from the largely symbolic issues raised by the Patriot Act. The debate should instead focus on whether emergency measures used by other liberal democracies, and the United States in the past, are appropriate for the modern threat posed by Al Qaeda.
The Patriot Act debate reflects a mutual accommodation between left and right to avoid airing the challenges of the new terrorism.
Administration officials want to show that they have boldly confronted the terrorist threat; critics want a vehicle for asserting the value of civil liberties.
The debate may even be reassuring, because it reflects a politics-as-usual attitude that avoids the hard issues before us. But we need to move on. We need to think creatively about strategies and tactics for the new war we have before us, not the one we had 20 years ago.
John Yoo is a professor of law at Boalt Hall and a visiting scholar at AEI. Eric Posner is a law professor at the University of Chicago. |
