How to Preserve Civil Liberties in a Pandemic
Lessons to Learn from Past Crises
As the coronavirus pandemic continues, our country faces numerous challenges that will require not only extraordinary responses, but extraordinary vigilance to prevent the abuse of power during this crisis. And as unprecedented as many of these challenges are, the fear the virus provokes is not entirely novel. Accordingly, responses to past crises—most notably, several national security crises—offer a set of cautionary tales that policymakers today would be wise to heed. It is critical that we learn from our nation’s reactions to those situations to protect democratic society during this pandemic, and in the years to come.
History shows that times of crisis are when civil rights and civil liberties are at the greatest risk. Constitutional rights are often not convenient. In fact, the framers of the Constitution designed many of those rights to inconvenience government. But it is essential that the government not treat national security and constitutional rights as an either-or, even and especially during a crisis, when the challenges at hand may also hamper good policymaking. The Constitution prohibits the government from infringing upon our personal liberty because the threats posed by breaches of our rights can be far worse than the problems the government may seek to solve. Infringements upon individual rights can have a corrosive effect on democracy that makes them hard to reverse.
“Those who fail to learn from history are doomed to repeat it,” the adage goes. The aftermath of the September 11 attacks offers the most recent examples of how, in responding to a crisis, government is susceptible to embracing policies that both ravage civil liberties and fail to make us safer. Throughout U.S. history, there are examples that follow troublingly similar patterns, from policies during the Civil War, San Francisco's bubonic plague epidemic of the early 1900s, and World War I, to the internment of Japanese Americans during World War II, and policies during the Cold War.
As we face the coronavirus pandemic, we should be wary of the patterns of abuses of power amid crises. If we don’t learn the lessons they provide, we may repeat history yet again. A close look at these patterns can not only show us what to avoid, but how to establish principles for effective crisis response.
Pitfalls and Cautionary Tales in Crisis Policymaking
When facing a nationwide threat—whether a public health disaster or a terrorist attack—the government often rushes to enact policies to protect the public and the national interest. These situations present challenges that can lead to poor policymaking: The imperative to act rapidly can outweigh the need to engage in nuanced study and reflection, and novel threats can leave us with without a clear roadmap to respond. Rushed and improvised approaches to policymaking can have severe repercussions, including for constitutional rights.
Policymakers’ responses to crises have too often been characterized by problems that seriously erode civil liberties without providing any public benefit.
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First, decision-makers have adopted responses that they present as being effective—enacting controversial and sometimes haphazard measures without providing any real evidence of their efficacy, which policymakers quickly and baselessly come to see as essential.
Second, policymakers have enacted policies in a rushed manner as a component of crisis response, and have done so with a degree of secrecy that impedes the public and oversight entities from examining the effectiveness, ethics, and even legality of the government’s actions.
Third, policymakers have insisted that policies that encroach on civil rights and civil liberties be treated as the only option available, appearing to ignore or dismiss any consideration of whether more narrowly tailored or less-intrusive means could accomplish the same goal.
And finally, all too often the government has pursued policies that scapegoat and target people of color, religious minorities, political dissidents, and immigrants—sometimes explicitly, and other times in effect—with no basis in evidence, and falsely framed threats around them to create the illusion that the government has identified and is confronting the cause of a crisis. These policies, as seen both in the aftermath of 9/11 and during previous crises, undercut key constitutional rights to equal protection and First Amendment-protected activities.
False Claims of Effectiveness
During a crisis, policymakers and the public often become fixated on whether and how much to “sacrifice liberty for security,” and fail to focus on a more basic question: Will giving up rights and liberties bring about the safety we’re seeking? The answer often turns out to be no. Yet once emergency policies are in place, rather than rigorously examining efficacy or their impact on rights, policymakers seem to operate on the assumption that an effective crisis response depends on a tradeoff between liberty and security.
As a result, the government may oversell, or even lie about, the effectiveness of policies that were ultimately both unethical and useless.
Perhaps the most infamous example of this phenomenon is the government’s use of torture as an interrogation method after the September 11 attacks. Following the attacks, the government was desperate for intelligence and was convinced that it needed to dramatically change its approach to counterterrorism. The CIA traded out conventional interrogation methods in favor of a program centered on various torture techniques. This “enhanced interrogation” program was not only justified with specious legal arguments, as we’ll discuss later, but there was also significant evidence from interrogators, as well as scientific and psychological research, that torture was not an effective means of interrogation.
Yet once the program began, the government dug in and defended it as essential, often using disingenuous framing that obscured and misrepresented the facts. Unfounded “ticking time bomb” hypotheticals and TV drama scenarios that were neither realistic nor relevant became the center of the debate on torture. Additionally, the CIA pushed inaccurate portrayals of torture as valuable—such as the notion that it had helped track down Osama bin Laden—rather than offering empirical evidence as to whether its use had provided real intelligence.
In the same period, the government by all appearances failed to account for the fact that its new policy of indefinitely detaining suspected terrorists might not make Americans any safer in the short or long-term. In the months following 9/11, the George W. Bush administration pursued a policy of designating individuals as “unlawful combatants,” which allowed it to place them in a legal limbo where they were treated neither as soldiers protected by the law of war under the Geneva Conventions, nor as accused criminals entitled to trials in federal court. This system of indefinite detention absent any meaningful judicial proceedings offered scant security benefits—and most notably failed to provide any benefits compared to criminal prosecutions or genuine military commissions—and had severe costs even beyond violating individuals’ rights. Detention practices at Bagram in Afghanistan, Abu Ghraib in Iraq, and Guantanamo Bay in Cuba ultimately may have fueled terrorism recruitment. Camp Bucca, a major U.S. detention facility in Iraq, was a site of radicalization that helped lay the foundation for the Islamic State militant group.
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Also beginning in this period, the government falsely claimed that mass surveillance of Americans was an effective national security policy. The government began a program of nationwide bulk collection of electronic communications records, notably phone and email records (more on this in our deep dive on the history and details of the bulk collection system, and how the passage of the PATRIOT Act in the aftermath of 9/11 opened the door to mass surveillance with few checks and little oversight). After the program became a topic of debate, the government aggressively defended it. But rather than rely on data or empirical evidence of value, the center of its arguments were clichés such as we need to “connect the dots“ and “let's collect the whole haystack” to find the needle in the haystack.
The facts told an entirely different story: As Congress began to question the efficacy of the nationwide collection program, the National Security Agency (NSA) went from claiming the program helped stop over 50 terrorist plots to admitting it only provided unique value in a single material support case. Ultimately, this surveillance dragnet never provided the value intelligence community officials initially claimed. The government collected and stockpiled hundreds of millions of Americans’ communication records—logs of private calls and emails—without any proven need or resulting public benefits.
Secrecy and Obfuscation
It took a shockingly long time to reveal that the government engaged in torture and mass surveillance, because the government kept the public in the dark about those programs.
The executive branch repeatedly shielded the torture program from oversight and public scrutiny. For example, in conceiving of the legal rationale for “enhanced interrogation” techniques, John Yoo, then an attorney in the Justice Department’s Office of Legal Counsel, did so largely in isolation, in a breach of the office’s practice of peer review.
Then, in 2005, the CIA covered up significant evidence of the torture program by destroying videotapes of waterboarding, even as a federal court had ordered that the tapes be turned over pursuant to a Freedom of Information Act request. The agency also sought to limit oversight by classifying the entire program including, for many years, detainees’ memories of their own torture by preventing them from testifying about it in the cases against them. The CIA also unlawfully obstructed congressional oversight, spying on Senate staff as they were investigating the torture program. Senators’ efforts to release the results of the investigation to the public have been fraught, with most of the report still withheld from the public.
Beginning in 2001, the NSA conducted nationwide bulk collection of communication records, and did so largely in secret for years. The agency and the Bush administration justified the illegal eavesdropping program under a dubious theory of unilateral executive power, with no approval by Congress or the courts, let alone the public. Even within the executive branch, the legal rationale was cabined off to a highly select group of Office of Legal Counsel and White House officials. When more Justice Department officials got a glimpse of the program and its shoddy legal basis, the system became the subject of a heated internal debate; a significant portion of those who were cleared to access the classified memos justifying the program felt that the legal justification was unsound.
And when the effort to maintain a mass surveillance program based entirely on unilateral executive authority failed, rather than go to Congress and ask it to create a law to permit the program, Bush—and then President Barack Obama—secretly used an existing provision of the PATRIOT Act to conduct this mass surveillance. When the program was finally revealed in 2013 through the Edward Snowden leaks, it quickly became clear that the program was built on an unstable legal foundation. Multiple federal courts ruled that conducting nationwide collection of communication records pursuant to the PATRIOT Act was unlawful, and Congress passed new legislation outlawing the practice.
The torture and indefinite detention programs and the nationwide collection of communication records illustrate another fatal flaw in policymaking: In crafting responses to crises, the government has often turned a blind eye to alternatives.
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In its myopic focus on torture, for example, the government ignored conventional interrogation techniques that do not violate constitutional rights and human rights law, and also had the added benefit of having been proven effective; empirical research has repeatedly shown that use of rapport-building interrogation has been a reliable method for interrogators.
Additionally, in pursuing indefinite detention policies during the war on terror, the government rejected the established practice of using the criminal justice system to try terrorists. The government’s designation of individuals as “unlawful combatants” and its subsequent years-long efforts to limit or avoid even military commissions show that it appears to have overlooked—or ignored—our history of safe and effective terrorism prosecutions in civilian court. Additionally, the government appears to have disregarded the basic fact that many detained individuals were not actually connected to terrorism or armed conflict with U.S. forces in the first place. We are still years away from trials being conducted for the individuals involved in planning the September 11 attacks and the 2000 USS Cole bombing. Meanwhile, perpetrators of terrorist attacks that occurred since 9/11—such as the 2012 Benghazi embassy attack and the 2013 Boston marathon bombing—have been successfully prosecuted in civilian court.
Finally, the nationwide bulk collection program was in use for almost 15 years without the government responding to the possibility that less intrusive methods could have provided the same or even more value for national security investigations. When it eventually came under scrutiny, multiple independent reviews of the program, conducted by government entities with full access to classified information and intelligence community agencies, reached the same conclusion: Collection of communications records was important to national security investigations, but mass surveillance was not essential for preventing attacks or conducting successful investigations. In fact, they found, far less invasive collection practices provided just as much value as collection on a nationwide scale.
Time after time, both in the years following 9/11 and in response to national security crises in the 20th century, some in government have exploited emergencies to sow fear, anger, and bigotry against vulnerable communities. These actions and policies violate civil rights, and endanger First Amendment-protected activities.
Throughout the war on terror, government officials have put out a significant amount of misinformation about Muslim communities, with an emphasis on manufactured threats of infiltration and radicalization. Following the September 11 attacks, as discrimination against Muslim Americans rose—and was fomented by misinformation coming from government officials—unfounded narratives warning of radicalization of Muslim Americans quickly came to shape counterterrorism policy. This played out both directly, such as in FBI trainings telling agents that devout Muslim Americans were likely to be “violent” and sympathize with terrorists because of their faith, and in ostensibly nondiscriminatory policies like the Countering Violent Extremism program.
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For years after 9/11, members of Congress repeatedly invoked the fear of Islam and Islamic law “infiltrating” American society and institutions. For example, in 2004, Representative Peter King (R-NY) baselessly stated, “80-85 percent of mosques in this country are controlled by Islamic fundamentalists,” while several years later then-Representative Sue Myrick (R-NC) claimed, “There is radicalization in the mosques.” In 2009 several members of Congress even called on the House sergeant-at-arms to take action against a Muslim civil rights group that they claimed was attempting to “infiltrate” Congress.
For its part, in 2002 New York City—with support from the federal government and specifically the CIA—initiated a pernicious and invasive surveillance program targeted at Muslim communities. This surveillance was not targeted at suspicious persons or activities, but rather allowed the law enforcement officials to track entire Muslim communities, and monitor normal activities at community centers, student groups, and places of worship. Researchers later found the surveillance program “created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life.” People researchers spoke to expressed fear of going to places of worship, wearing religiously affiliated clothing, discussing current events and politics in public or online, or interacting with other members of their community.
The aftermath of the September 11 attacks is far from the only time the government has resorted to scapegoating in response to a crisis, endangering civil rights as well as First Amendment-protected activities.
The internment of Japanese Americans during World War II reflects many of the nefarious features of the federal government’s more recent failed crisis responses. The policy was driven by racism and xenophobia, and had no real security purpose. And although a report that President Roosevelt commissioned John Franklin Carter to develop before the United States entered World War II refuted the notion that Japanese Americans were “disloyal” to the U.S., the baseless sentiment gained traction in government as public anger and bigotry grew after the Pearl Harbor attack in 1941. When the Supreme Court ruled in support of internment policies in Korematsu v. United States, it relied on the idea that the west coast was at risk of invasion during the war, despite the fact that the military believed any threat of invasion by Japan had already been eliminated.
Later, at the height of the Cold War, Senator Joseph McCarthy’s House Committee on Un-American Activities stoked exaggerated fears of communism as an existential threat, as McCarthy sought to denigrate individuals for engaging in lawful political activity totally unrelated to legitimate Cold War threats.
Will We Repeat These Mistakes in a Pandemic?
As we confront the coronavirus pandemic, it appears that our government may again be on a path toward responding to this crisis in a manner that will needlessly erode civil rights and civil liberties. It’s important that we address these problems before they become entrenched, and develop principles that will help us avoid repeating past mistakes.
The federal government’s response has already resulted in infringements on constitutional rights. For example, while there is a huge range of serious, practical limits to the effectiveness of electronic contact tracing—meaning using cellphones to track people’s movements and interactions that could spread the virus to others—the government and companies are charging ahead to embrace an idea that may amount to mass surveillance that does little to help mitigate the spread of the disease. Additionally, state and local governments’ stay-at-home orders pose serious questions regarding freedom of speech, the right to association, and religious freedoms. Businesses have been ordered to close temporarily, raising the specter of a denial of property without due process of law.
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The pandemic is also creating dangerous new situations that have severely harmed civil liberties and will continue to do so if governments do not act to remedy these problems. The incarcerated and those in immigration detention now face an increased risk of contracting a potentially fatal disease—making an overnight jail stay a possible death sentence—and presenting novel questions of cruel and unusual punishment. Shutdowns have slowed court proceedings, endangering the right to a speedy and public trial, while legal proceedings being moved to a virtual setting limit individuals’ right to confer with an attorney.
Even as policies that would harm civil liberties, such as electronic contact tracing and travel restrictions, are under consideration or have been enacted as pandemic response measures, the federal government has taken inadequate steps toward a far less problematic measure necessary to limit the spread of the pandemic: providing robust testing.
As we learn more about the novel coronavirus, we must monitor whether policies put in place are effective, and ask if there are alternatives that would infringe less on constitutional rights. And we must remain vigilant to ensure that deprivations of rights do not become the “new normal.”
Disturbingly, policymakers at the highest levels of government appear to have resorted to scapegoating. While racism against Asian Americans is on the risenationwide, the president and congressional leaders have publicly labeled the novel coronavirus a “Chinese virus.”
Meanwhile, late last month, President Donald Trump issued an order to “suspend immigration,” which he claimed was a response to the pandemic, but which reporting indicates is driven by the administration’s longstanding anti-immigration goals. And the president continues to threaten to withhold pandemic aid to cities based on local immigration-related policies that have nothing to do with the current crisis.
Principles to Guide Us in a Crisis
It should be an easy lesson to learn that we ought to be skeptical of the government’s claims— claims that sacrificing rights surely offers safety, that the government’s actions need to be kept secret, that we only have one option in a crisis, or that targeting vulnerable groups is acceptable.
The harder challenge is to motivate the government to be more skeptical of these types of flawed, secretive, and ineffective responses in the first place, and identify these recurring issues before problematic programs become entrenched and become much more difficult to stop even as they needlessly harm civil liberties.
The following principles can guide us in achieving this, and can prevent us from going down the wrong path in a crisis:
Demand data: Policymakers should center policy decisions on empirical information, data, and expert analysis to assess the effectiveness of programs, both before deploying them and in reviewing their impact while in action.
Require transparency and oversight: The public needs to have a clear view of policies under consideration during a crisis, and the need for rapid action or to address security concerns cannot become reasons to disregard this obligation. Independent oversight bodies need to be given the ability to perform their role and examine the policies enacted.
Prioritize least-intrusive measures: Government should prioritize measures that are the least intrusive to civil rights and civil liberties, and should ensure that emergency policies and programs are as narrowly tailored as possible before adopting them.
Prioritize civil rights: Government should prioritize policies that equally impact people throughout society, and avoid measures that target or disproportionately affect any particular group.
Keep response measures temporary: Policies adopted as emergency response measures should have a set end-date so that they don’t continue indefinitely if the government doesn’t proactively revoke them. These expiration dates should be short-term, with the expectation that lawmakers will extend or reconsider measures if a crisis is ongoing.
Every crisis is different, and few if any come with a roadmap for how best to keep the public safe and protect constitutional rights and liberties. But our examination of past crises shows that policymakers through the years have made the same sorts of mistakes time and again. It has never been more urgent that we learn from those failures and chart a path to avoid them in an uncertain future.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.