Jake Laperruque, a fellow at Tech Policy Press, recalls the moment that changed the nation. On September 11, 2001, terrorists struck the United States and the world recoiled. For those who came of age after the Cold War ended, the assault shattered a sense of security that had seemed permanent. The blow fell especially hard on New York City residents and their families—many of whom worked in lower Manhattan, some inside the Twin Towers themselves. Nearly 3,000 people perished that day, along with over 400 first responders who rushed toward danger to save others. The attacks left a permanent wound on the American psyche, erasing the assumption that daily life carried an inherent safety.
In response, the nation mobilized with unprecedented force. The government launched covert operations and large-scale military campaigns worldwide, while simultaneously overhauling domestic law and policy. Two and a half decades later, the moment invites reflection: how have the nation's War on Terror measures altered the landscape of privacy, civil liberties, and state power? Tech Policy Press convened a panel of nine specialists and posed a straightforward question: what has the United States become as a result of these policies?
The findings reveal a sobering picture. On civil rights and civil liberties broadly, experts reached consensus that protections have eroded, though they disagreed on the magnitude. Opinions split on whether the Department of Homeland Security fulfills its original mandate, and on whether government transparency on national security matters has deteriorated. Yet on several fronts, the panel spoke with one voice: nearly all respondents believe the public has grown wary of granting the government additional counterterrorism and national security authorities, and all concurred that terrorism has dropped in priority among national security concerns. Nevertheless, every expert agreed on one point: the imperial presidency has expanded dramatically over the past 25 years. The implication cuts deep—while the severity of threats may shift over time, or our perception of them may change, the government rarely surrenders security powers once granted, particularly those held by the executive branch. Restoring lost rights proves far harder than surrendering them.
Nine Experts, Eight Questions
Tech Policy Press asked nine specialists in privacy and civil liberties to evaluate what a quarter century of War on Terror policy has wrought on rights, oversight, and executive authority domestically. Each responded to the same eight questions using a five-point scale. Aggregate results are presented below.
- Spencer Ackerman, Journalist, FOREVER WARS
- Sharon Bradford Franklin, Former Chair, Privacy and Civil Liberties Oversight Board
- Elizabeth Goitein, Senior Director, Liberty & National Security Program, Brennan Center for Justice
- Kia Hamadanchy, Senior Policy Counsel, ACLU; views are their own
- Jameel Jaffer, Executive Director, Knight First Amendment Institute
- Samir Jain, Vice President of Policy, Center for Democracy & Technology
- Greg Nojeim, Director, Security and Surveillance Project, Center for Democracy & Technology
- Faiza Patel, Senior Director, Liberty and National Security, Brennan Center for Justice
- Peter Swire, J.Z. Liang Chair, Georgia Tech School of Cybersecurity and Privacy
- How do privacy rights and protections compare to 25 years ago?
- How do free speech rights and protections compare to 25 years ago?
- How do rights and protections for minority communities compare to 25 years ago?
- Is transparency into national security policy stronger or weaker than it was 25 years ago?
- How responsive is the Department of Homeland Security in its current form to the mission it was founded for after September 11?
- Is terrorism more or less of a national security priority than it was in the years immediately after the attacks?
- Is the public more inclined to give the government counterterrorism and national security powers today, or more skeptical of doing so?
- Is the Imperial Presidency more or less powerful than it was 25 years ago?
The biggest course correction
When asked what single course correction or fix has been made to War on Terror policies over the past 25 years, three of the nine experts identified the same legislative achievement.
Bringing some assertions of executive authority under statutory structures (FISA instead of claims of Article II authority).
The USA FREEDOM Act and the expiration of Section 215.
Much more skeptical of surveillance authorities than we were in the immediate aftermath.
Disavowal of torture.
Enactment of the USA FREEDOM Act.
USA FREEDOM Act of 2015.
First I have to address the poor way these questions are worded. You ask: "How responsive is the Department of Homeland Security in its current form to the mission it was founded for after 9-11?" If you mean "treating immigration like terrorism" then it's doing an accelerated version of its original job. If you mean "first it focused on Islam and now it doesn't," then sure. But all these questions suffer from a euphemism that make them hard to address insightfully. "Is terrorism more or less of a national security priority than it was in the years immediately following the 9-11 attacks?" Well, they've just redefined terrorism – see NSPM-7 – so it's quite an intense priority right now; but I don't think that's actually what you mean to be asking. Now as to this question: I would say the closure of the CIA black sites.
Unfortunately there has been no course correction. Instead the surveillance state has only grown. The few reforms that were made in the wake of the Snowden disclosures (e.g., Section 215, some transparency on foreign intelligence surveillance) are modest compared to the increase in the government's surveillance capacities.
The biggest problem still unfixed
When pressed on the most significant unresolved problem stemming from War on Terror policies, the experts offered the following observations:
Mass surveillance.
Deference to the executive branch whenever they mention the words national security.
AUMF.
Permitting domestic surveillance without suspicion of criminal activity.
Excessive data sharing among agencies without sufficient safeguards.
The ability of the executive branch to use fear to push through policies that give more power to the executive without sufficient guardrails.
It's a tie: (1) The conflation of counterterrorism and war. Not all actions that meet the statutory definition of terrorism are acts of war that justify a military response or trigger the president's commander-in-chief powers. (2) The myth that national security is the sole province of the president (not Congress or the courts), resulting in a dangerous skewing of the balance of power among the three branches of government.
Our legal protections have not kept up with the ways in which rapid advances in technology have made surveillance at scale more possible and cheaper.
The biggest problem we haven't fixed is circumvention of legal protections Congress built into the law. The purchase of commercial data is perhaps the most troubling example of circumvention, followed by the erosion of Privacy Act protections against misuse of government data.
What we don't reflect on enough
The panel also considered what aspects of the post-9/11 response warrant greater public attention and scrutiny:
Guantanamo Bay.
It's not a zero sum game — we can and should protect both national security and privacy and civil liberties.
The military industrial complex.
The risks of post 9-11 information sharing efforts.
The correlation, globally and historically, between the adoption of extraordinary counterterrorism authorities and rising authoritarianism/democratic backsliding.
How much the current situation we are in right now in terms of abuse by the executive branches traces back to bipartisan expansions of executive authority that really began in the aftermath of 9/11.
We don't think enough about the costs to privacy of attempts by the government to classify people as citizens vs. non-citizens and adults vs. minors.
The long-term power and credibility of the US have eroded due to too much military intervention in the Middle East, a problem that continues today with Iran.
Source: Tech Policy Press
