In his weekly NR column this past Saturday Andrew McCarthy decried “The turn to a pre9/11 mindset.” In part the column takes up last week’s decision (linked below) invalidating the Terrorist Screening Database. Secretly compiled by the government, the watch list subjects those listed to heightened security vetting before they are permitted to board commercial aircraft. My friend Andy writes:
Judge Anthony Trenga’s watch-list decision (Elhady v. Kable) is a case in point. Our ostentatious airport-security procedures ensure that even those too young to remember 9/11 are only too aware that civilian airliners can be weaponized to horrific effect. Precautions have to be taken regarding who boards them; intelligence has to be gathered and acted on, with the threats weeded out. No sensible person disagrees with that. But this does not end the matter. It just tees up the hard choices that have to be made — the ones people prefer not to make . . . unless the threats seem so real and so immediate that they must be confronted.
Intelligence-based security can be effective only if the government can collect and analyze it in secret. Otherwise, we will get scant cooperation from key sources of threat information, from foreign intelligence services to people who’ve been admonished to say something if they see something. Yet we remain error-prone humans acting on imperfect information. A suspicion that a person could be a threat, however reasonable, will necessarily be wrong in some cases. Some innocent people inevitably will be harassed. On the other hand, if suspected people are given notice of, and a meaningful opportunity to challenge, their placement on the list, the list will no longer be secret. And if it is not secret, it will no longer be effective.
It is Congress that is supposed to wrestle with these tough line-drawing exercises. Legislative power is adaptable. It can adjust our precautions as the threat environment changes. It can adopt metrics that increase or decrease screening, while providing for searching oversight. It can ensure that the FBI and other executive security agencies are making decisions based on proper factors, that there are sensible standards for inclusion in the database, and that the inclusion of individual Americans is periodically reevaluated such that they are removed unless there is a good reason for their continued listing.
The executive is responsible for safeguarding the nation, so it will naturally err on the side of heightened security measures. The courts are a bulwark against government abuse, so judges naturally err on the side of individual rights. That’s why Congress is so essential. Lawmakers are supposed to account for these competing interests. But Congress does not do much legislating anymore. It delegates, leaving members more TV time to complain about how bad things are. While many of us are not fans of having judges draw the lines, someone has to do it. When the politically accountable officials duck, courts must fill the void.
The government tried to persuade Judge Trenga that it responsibly vets the database. The Justice Department insisted that the FBI and its partner agencies could be trusted to manage the list; the court should stay its hand, since this was a national-security matter. Plus, the claimants lacked standing: They were unable to say whether they are actually on the list, and merely speculated that they’d be harmed in the future. Moreover, the government maintained that any harm was merely inconvenience: No one was being prohibited from flying and no one has a reasonable expectation of hassle-free international travel; national-security concerns must take precedence, notwithstanding the plaintiffs’ horror stories about temporary detention, stigmatization, and professional damage.
These arguments would have carried the day in 2002, and probably for a number of years after that. But in 2019, the FBI’s claims of trustworthiness are not apt to be taken at face value. Courts are not likely to indulge the government’s Catch-22 standing arguments (“They can’t prove what we won’t tell them”). And, most significantly, what may seem like trifling inconveniences when people believe the next terrorist attack is imminent become major concerns — and now, legally cognizable damage — when 9/11 is a fading memory, and when the precautions taken to prevent its repetition have ushered in a sense of security, a perception that the threats have been exaggerated.
Read the whole thing here.