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Being at war with an abstraction generates a multitude of perplexities, not the least of which is the problem of how one is to identify enemy combatants. The new Homeland Security Department has tried to be helpful, advising Americans to be wary of people who become impatient while waiting in line to pay for groceries, people who recently might have shaved off a beard, and people whose faces show no emotion but whose eyes appear to be focused and alert.
In U.S. airports, meanwhile, flight schedules are being disrupted by women wearing something called an underwire bra, which routinely sets off the metal detectors. Typically, these women are not terrorists but become unreasonably hostile when guards undertake to "pat them down" to ascertain whether the so-called underwire bra is in fact a concealed weapon.
Even in the worst of times Americans usually find something to laugh at, a means of relieving the pressure. The gallows humor of James Bovard, a bright fellow with a sharp wit, helps to underscore the more outrageous blunders and miscalculations that have been committed by the several intelligence communities and law-enforcement agencies, the opportunistic power grabs by high-ranking bureaucrats, and the heavy damage inflicted on the Bill of Rights not by terrorists, but by friendly fire from both the Justice Department and the White House, all under the banner of defending freedom. Bovard finds much that he considers ridiculous and he does not shrink from ridiculing it.
The most conspicuous example, in his view, is the centerpiece of the new maximum-security America, the USA-PATRIOT Act. The letters stand for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism," and the acronym "PATRIOT" was chosen presumably to suggest that true loyalists shouldn't quibble over the assortment of rights and freedoms that would have to be dumped into the Potomac in order to equip the government with the tools it deems "appropriate," which turns out to mean: largely unencumbered by constitutional restraints.
Bovard argues that expanded powers amount to a reward for incompetence and misconduct on the part of federal agents who failed, with tragic results, to uncover and prevent the 9/11 plot. This is of central importance in Bovard's analysis of the response to 9/11 --- the fact, which has been affirmed by the Joint Intelligence Committee, that the government had all of the information it needed to detect and block a conspiracy to hijack four airliners. Some of the information was lost, Bovard says, and the rest, which was in Arabic, was put into storage to await the arrival at some future time of a translator. In any event, he says, after the government failed to analyze and exploit the information in its possession, it granted itself the right to seize vastly more information and to treat all Americans as if they were collaborating with the terrorists.
A case in point is the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978. It established a less demanding legal standard of probable cause --- diluting probability to the realm of possibility --- for spying on foreign agents within the United States and a separate court (FISC) to oversee that surveillance. At Ashcroft's urging, the Patriot Act extended FISA's authority to include surveillance of American citizens, effectively bypassing the Fourth Amendment.
As a libertarian, Bovard objects strongly to the act's broad powers, which breach fundamental provisions of the judicial system, particularly those dealing with privacy, presumption of innocence, due process and judicial review. At the same time, he cannot resist pointing out the irony of the President's repeated assertion that the nation is "fighting for freedom," when the government itself --- notably the Attorney General --- has made clear that the Constitution only impedes the fight.
Under the aegis of the Patriot Act, foreign nationals may be held in custody for indefinite periods without access to legal counsel. FBI agents may now walk into a bookstore or library and demand records of books purchased, checked out or simply asked about --- highly invasive violations of privacy that had been strictly prohibited before passage of the Patriot Act.
Bovard is deeply concerned by the expanded federal surveillance under which Americans now live their daily lives. Old rules are no longer relevant when the FBI turns on its DCS 1000 email wiretapping system, which is capable of scanning and collecting millions of emails per second, filtered or not. Because Americans may as easily be terrorists as anyone else, every American is potentially guilty and therefore to be regarded as a suspect, if only in some not-yet-committed crime. To obtain an even closer look, the FBI uses software called "Magic Lantern," which enables it to monitor and record all keystrokes on targeted computers. The Patriot Act also permits "national roving wiretaps" of telephones not limited to persons who have in some way aroused more suspicion than the average U.S. citizen, but covering large geographical segments of the population.
Yet another tool is the National Security Letter, a subpoena letter issued without a court order that compels the recipient --- an individual, business, organization or institution --- to surrender all confidential or proprietary information, including records of bank accounts, Internet usage, phone calls, email logs, lists of purchases, and so on. Persons receiving such letters are prohibited from telling anyone. Disclosure carries a penalty of up to five years in prison.
The government's reasoning is that in the post 9/11 context the Fourth Amendment prohibition of unreasonable searches must be reinterpreted. What is deemed unreasonable in time of peace, Ashcroft argues, shouldn't necessarily be viewed as unreasonable at a time when America still faces the threat of further attacks.
Bovard accepts the argument but not the extent to which its conclusion has been used to justify essentially unrestricted spying on U.S. citizens. In any event, he says, allowing the government to nullify constitutional rights in defending the country against terrorism isn't the correct response to the terrorist threat because it fails to address the cause, which he says is U.S. meddling in the affairs of foreign governments.
Unable to display concrete evidence that America is bringing terrorism to its knees, Bovard says, the various governmental news providers have begun to rely on numbers as indicators of progress, in the same way that enemy body counts became integral to reports issued during the Vietnam War to persuade the public that U.S. forces were making headway. Now the FBI or the President announces triumphantly how many wiretaps and searches have been carried out, how many persons of "special interest" have been detained, how many bank accounts have been frozen, and how much money was in all of those accounts. Of course, the enemy body counts turned out to be largely irrelevant, as were figures on wiretaps, detainees and frozen bank accounts, without additional information such as how many of the persons whose phones were tapped turned out to have terrorist links. As it is, Americans can only speculate as to whether the numbers signify success or simply activity.
Bovard's position is firmly established on a foundation of classical liberalism and libertarianism to which he is deeply committed, and he is profoundly troubled by some of the measures taken by the Bush administration to secure the nation against terrorist attack. Yet the chief value of this book rests on the author's reporting, not on argument or interpretation. He has fully answered a good reporter's basic question: "What are the facts?" His sources are credible and his presentation, except for an occasional sarcastic comment, is objective and straightforward. Every item of information is properly declared and accounted for in 68 pages of endnotes.
One may disagree with his conclusions --- that the price exacted by the federal government for enhanced security is exorbitantly and unreasonably high, that the government has trashed principles that defined this nation and made it unique, and that what has been taken away might never be fully restored.
Reaching the closing pages, readers may recall a much-quoted statement made at a news conference years ago in Saigon. Explaining to correspondents why a particular South Vietnamese village was no more, a military spokesman said simply, "We had to destroy it in order to save it."
--- Reviewed by Harold V. Cordry
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