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2 Citizens and Aliens If you’re a citizen, you get the Cadillac system of justice. If you’re a foreigner or a green-card holder, you get the beat-up Chevy version. —Professor Neal Katyal on the Military Commissions Act of 20061 IN SOME RESPECTS, the 9/11 crisis seemed very familiar to Americans . It was the sixth security crisis to grip the nation in a century. The first was triggered by the entry of the United States into the First World War in 1917; this was followed by the Great Red Scare of 1919– 1921, a panic caused by the Bolshevik revolution and labor unrest following the war. The Second World War and the Red Scare that followed in 1947–1954 constituted the third and fourth crises. The fifth was the “law and order” crisis of the late 1960s and early 1970s, a decade that witnessed a string of political assassinations, devastating urban riots, mass protests, and a surge in violent crime and domestic terrorism.2 During each of these crises, the U.S. government took actions that seriously restricted the rights and freedoms of U.S. citizens. Foreigners living in the United States or abroad often had their rights compromised as well; but the important point is that they did not bear this burden alone. Citizens suffered with them. Well before the 9/11 attacks it was a commonplace of American political discourse that security crises compelled American citizens to accept serious tradeoffs between collective safety and individual liberty. Many Americans perceived the 9/11 crisis in just this way, as a reprise of these earlier struggles between security and citizens’ rights. The federal government’s response to the 9/11 attacks, the historian Alan Brinkley said, was “a familiar story.”3 Legal scholar Geoffrey Stone saw “disturbing—and all-too-familiar—patterns in some of our government’s reactions,”4 while the journalist Haynes Johnson empha24 sized “parallels between the past and present.”5 History was repeating itself, said the Sacramento Bee.6 The steps taken after 9/11 were “chillingly familiar,” said the San Francisco Chronicle.7 The Seattle Times felt a sense of déjà vu.8 “We have been here before,” said The Progressive.9 A natural consequence of this emphasis on historical parallels was a tendency to describe the effect of federal policies in stark terms: as a “war on our rights” or a “war on our freedoms.”10 “Our civil liberties and our freedoms,” the producer of a prize-winning documentary film said in 2004, “have been trampled upon by our government since 9/11.”11 After 9/11, said a prominent civil libertarian, the nation fell into “the greatest civil liberties crisis since the Palmer Raids and other World War I–era abuses.”12 Like the generations who had lived through earlier crises, Americans were thought to be paying a heavy price because of the preoccupation with collective security. The analogy to earlier crises was easy but misleading. The basic rights of citizens that were usually weakened during earlier crises were not assaulted in the same way after 9/11. This was a testament to the strength of the legal and political checks on executive power built up over the preceding century, largely in response to governmental excesses during those earlier crises. After 9/11, the most substantial threat to citizens’ rights arose from governmental surveillance, profiling , and data-mining programs—programs that exploited recent innovations in communications and information technology and that threatened a recently affirmed entitlement, the right to privacy. For citizens , the critical question after 9/11 was how to balance the right to privacy with the country’s security interests, given new technological capabilities. This was a distinctively postmillennial predicament. The depressing reality is that the nation proved incapable of establishing policies to resolve this predicament that met the twin tests of transparency and legitimacy. The Bush administration was rightly condemned for undertaking programs covertly, rather than seeking congressional sanction for its policies. On the other hand, the administration also confronted a public (and a civil-liberties community) that was deeply hostile to potential intrusions on privacy rights and that routinely exaggerated the threats posed by federal initiatives. The question is not simply whether the Bush administrative should have attempted to seek endorsement of its policies; the answer to this question is clearly in the affirmative. The question that is less easily resolved is whether the Bush administration could have obtained Citizens and...

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