In his joint address to Congress the week after 9/11, President Bush insisted that “we are a country awakened to danger and called to defend freedom”. Yet 10 years after the attacks, thanks both to Bush’s government and his successor’s, the land of the free has arguably never been less so.
For many Americans, the pantomime pat-downs and confiscations of baby food and bottled water at the nation’s airports are the most visible aspects of the new security state in action. New Yorkers see it more frequently: metal detectors are a not uncommon sight at office buildings now, and since 2005 the NYPD can stop passengers on the subway and search any bag they please. Although the Constitution’s Bill of Rights prohibits “search and seizure” without probable cause, efforts to have the bag-search law struck down ended in defeat. The police’s responsibility to prevent terror, a judge ruled in 2006, permitted an intrusion on the plaintiffs’ privacy rights.
The main symbol of limitations to freedom after 9/11 has been the PATRIOT Act, a 300-page security law passed almost unanimously in October 2001. One provision in particular has rankled: it gives the government permission to search financial transactions, phone records, and even lists of borrowed library books without a warrant. Over the past decade the PATRIOT Act has been revised several times, but this May President Obama signed an extension of the law, and the so-called “library records provision” remains on the books. Obama’s lawyers have also defended the Bush administration’s warrantless wiretapping programme, authorized in secret in 2002 and only revealed years later by a newspaper investigation.
For Burt Neuborne, professor at NYU Law School and director of its Brennan Center for Justice, the two administrations are similar in their approach to policing and surveillance, especially of Muslim communities. “There’s widespread use of untrained and poorly supervised informers in mosques and cultural centres. We’ve also seen a vogue for preemptive policing,” he says, describing law enforcement attempts to stop crimes before they’re committed. “And the very weak American rules on entrapment tolerate aggressive recruiting of potential criminals as long as they were ‘predisposed’ to commit the offence.”
Neuborne concedes, “It would be wrong to exaggerate the problem, or to ignore the real threat of terrorist attacks. We are not talking about Second World War-era Japanese internment camps, or widespread oppression as during the McCarthy era. But the law enforcement double-standard is disturbing. And the only real difference between Obama and Bush is Obama’s willingness to tolerate judicial review.”
Yet judges have lately given broad leeway to surveillance programmes and other new law enforcement powers. The newest test comes this October, when the Obama administration will argue before the Supreme Court that the government can affix GPS devices to cars and track them without a warrant. Ten years on from 9/11, curtailing freedoms in the name of security remains the order of the day.