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We Asked; You Said
Feedback From Communitarian Update
Number 57
We asked:
The U.S. Justice Department has started to use anti-terror laws to fight garden-variety crime including money laundering, pedophilia, and drug smuggling. Civil libertarians argue that law enforcement officials now have an enormous amount of special powers that were granted them to fight terrorists, in the wake of 9/11, because of the special threats they pose. Others hold that these new tools would serve the nation well if also used to deal with drug lords, pedonphiles and other criminals. Thus, if in the course of an anti-terror investigation TSA officers in an airport uncover other incriminating evidence, say searching for a bomb but finding drugs, should the officers be required to look the other way?
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From the findings of sociological research on policing, it is no surprise to find that there are spill-over effects from one area of policing to another. In fact, it would be surprising were it otherwise.
The very power of police is to pro-actively and reactively implement strategies of
criminalization, often in ways that are general and broad, allowing for more precise police
activities depending on socio-historical circumstances. Succinctly phrased, police officials
engaged in anti-terrorist work will also track down other crimes because and when they can do
so. But these other crimes are also part of their duties. The objectives of policing have not
changed since 9-11, only the opportunities have.
The critique, however, that this policing "of each and all" is the result of new anti-terror laws is
misconceived, for it wrongly assumes that police activities are exhausted with reference to formal
systems of law. Police is not the enforcement of law. Police is the control of crime (and the
maintenance of order). Terrorism has been among the province of US police powers since at least
the 1970s (and dating further back to 1934 when FDR secretly ordered the Bureau of
Investigation to police the American Nazi movement). Between 1985 and 1989, the FBI already
conducted over fifty anti-terrorist investigations outside the US. The counter-terrorist work by
the FBI then steadily expanded throughout the 1990s and again after 9-11.
But the Bureau and other police agencies did not need any new laws to investigate terrorist cases
since 9-11. Neither did police agencies need any new laws to legalize special police methods, for
the use and implementation of police technology has always been determined by standards of
efficiency more than legality. The implications of the political and legal repercussions of 9-11 are
many, but the policing of terrorism is not one of them. Instead, relevant police agencies have
responded to the events of 9-11 in a manner that is congruent with their own bureaucratic
development and the principles they have been adhering to for decades.
The critique by civil libertarians (that the Justice Department has started to use anti-terror laws to
fight garden-variety crime and that law enforcement officials now have an enormous amount of
special powers) conflates various levels of policy (Justice Department) and policy
implementation (law enforcement officials). In actuality, the world of policing is considerably
autonomous, divorced from the branches of the executive (much like the branches of the
executive are, to some notable extent, not in sync with one another and not necessarily centralized
by/under presidential power). The view of power that guides many of the questions civil
libertarians nowadays raise about police power are not misguided in their concerns (the negative
effects of potential police actions) but naive in failing to pinpoint the nature of crime control
programs at various levels (political, legal, administrative, institutional).
Professor Mathieu Deflem
University of South Carolina
Your summary confuses the issues. There is an issue like the one you pose; namely, other crimes
are coincidentally uncovered in an anti-terrorism investigation thanks to the use of tools that only
our interest in fighting terrorism led us to allow. One can make a case either way on this, with the
case for admitting the evidence obvious while the case against requires an argument like that for
the fourth amendment; either the evidence is tainted and a court should not be a part of it or it is
excluded as a deterrent to abuse. Also, whatever the officers have to do, they don't have to look
the other way; at a minimum they could confiscate the drugs and they could arrest the carrier.
What they couldn't do, under the civil libertarian quasi-fourth amendment scheme, is introduce
those drugs into evidence if they tried the carrier for drug possession, but other evidence- e.g. a
confession, would be admissible. A case can be made that requiring the law to forego this
evidence is shortsighted, just as a similar case can be made against the 4th Amendment
exclusionary rule. I personally do not think there is a serious civil rights violation here, assuming
the search for terrorist evidence did not violate anyone's civil rights. The intrusion has occurred,
it was presumably for a legitimate purpose and reasonable, although it turned out that evidence
not of terrorism but of another crime was serendipitously discovered.
But the issue that most concerns civil libertarians is that these weapons which we are willing to
give the police only when a crime is as serious as terrorism (we know this because Congress
refused to pass laws allowing them when they were justified on the basis of their general utility
in fighting crime) will be intentionally used when there is little reason to suspect terrorism but
considerable reason to suspect other crimes; e.g. drugs. Moreover, to the extent that they require
a terrorism nexus they will tend to corrupt the law enforcement process because law enforcers
will have to conceal or lie about their true motives. It appears from the news that the US
Department of Justice is encouraging such "off label" uses. This if true is bad faith law
enforcement and subverts the democratic process since Congress seems not to have intended the
law to be used this way even if in its generality it can be. Indeed, some argue that the US
Department of Justice intentionally used the threat of terrorism to get powers from Congress to
deal with ordinary crimes that the Congress would not otherwise give it. If this claim is true, then
all who believe in the rule of law and respect for democratic processes should be troubled by the
US Department of Justice’s behavior even if we cheer the apprehension of criminals.
R. Lempert
Professor of Law
University of Michigan
I am very concerned about the use of anti-terrorist laws by the justice department for anything,
even slightly outside of the boundaries laid out by the law. Therefore, I am strongly opposed to
its use for garden variety crimes. Additionally, I think the anti-terrorism laws went too far and
have eroded our civil liberties to a greater extent than is reasonable. I would like to see them
repealed ASAP. I think that our previous rules of law adequately protected our safety and civil
rights and those protections should not be eroded, particularly at a time when our country’s
values and future are being tested by acts of terrorism. Keeping to our countries original ideals is crucial
even more now and we should not allow ourselves to be seduced by the idea that stricter laws
and less civil rights for potential terrorism will advance our needs. History has taught us that
when a country, in the guise of protecting itself from a perceived outside threat, develops
nationalistic laws that allows us to legally persecute people who we perceive as different from us,
disastrous things can and may happen. I do not want this to happen to the US and I fear that these
laws and the policies of the present Bush administration are leading us in that direction. The disastrous
"Wars" in Afghanistan and Iraq are examples of what damage can be done by giving too much
power to people who view the world as simply "us vs. them".
Martin H. Young, Ph.D.
Professor of Pediatrics
Director, Developmental and Behavioral Consultation Program
UMASS Memorial Healthcare/UMASS Medical School
Why should these officers (searching for a bomb and finding drugs) look the other way?
Wouldn't that be tantamount to aiding and abetting a crime? I have always believed that law-abiding citizens have nothing to fear from police powers, except an occasional inconvenience.
We experience constant inconveniences at the hands of business interests in their pursuit of
private profit. Yet we only complain about the rare inconveniences caused by government in its
pursuit of the public good. There is something basically unbalanced in this picture. Civil
libertarians do not speak for me.
Jim Flechtner
Findlay, Ohio
Whether or not the so called "Patriot Act" is being used to combat terrorism is subject to
objective testing: let the Administration publicly demonstrate exactly what is being done through
the use of the "Patriot Act" to combat terrorism that it could not, and cannot, do without it. So
far, there is little in the way of objective evidence to support the need for the existence of the
legislation. If the only substantive uses of the "Patriot Act" involve prosecution of matters which,
by their very nature, were prosecutable before its enactment, and not within the contemplation of
the legislative history nor of the legislative intent which gave rise to the "Patriot Act," the
objective evidence supports the position that the prosecuting authorities have committed a fraud
upon the Republic, and the legislation ought to be repealed at the earliest opportunity.
Robert Jansen
Anaheim, California
Anti-terror laws and anti-terror culture are not just starting to crack down, and the crackdown is
not just focused on serious crime. Our research indicates that young adults with serious mental
illness in Washington D.C. and in Vermont experienced a substantial increase in their already
elevated risk of arrest immediately after September 11, 2001, and that increase has continued.
This increase was most evident for young adults, and especially young black men with serious
mental illness. People with serious mental illness are widely described as a "vulnerable"
population, and rarely (if ever) pose a serious threat to our national security.
This Communitarian intellectual exercise asks us to support or oppose governmental action with
regard to one hypothetical, and perhaps, atypical situation. We are empiricists who believe that
the pursuit of a better society will be served if it is grounded in hard data regarding social
tolerance and intolerance in post-9/11 America. Rather than judging one narrow slice of this
reality, we would like to participate in a community of learners interested in advancing
understanding of the many faces of our post-9/11 social reality.
The data we need to understand this new social reality are widely available in administrative
databases. The analytical tools for using these data while protecting the privacy of individual
citizens are emerging. We believe the analysis of administrative databases is essential because
these data reflect the reality of the actions of our governments. Hypothetical situations may or
may not reflect social reality, and the results of opinion polls can easily reflect collective
misperceptions. We encourage others of like mind to work to keep the Communitarian ideal
grounded in the continually changing empirical reality of life in the United States by using this
forum to share information as well as opinions.
John A. Pandiani, Ph.D., Sociologist
Steven M. Banks, Ph.D., Mathematician
The Bristol Observatory, Bristol, VT
I couldn't care less about this non-threat to my liberties.
If we the people don't want to enforce laws against "money laundering, pedophilia, and drug
smuggling," then we should repeal them. If we do want to enforce them, then any time a
terrorism investigation turns up evidence of another crime, that evidence should be used.
Stephen M. St. Onge
Minneapolis, MN
I think that we have been too willing to give up our freedom in supporting the 'anti terrorism'
lobby. It is an extremely dangerous move that can lead to the individual losing all his/her rights.
Rob Welsh
Australia
Regardless of the crime, nail them!
After 24 years in service if you don't allow yourself to get close to crime you have nothing to
worry about. Stay squeaky clean and go about your business.
A. Himel
Houston
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