Two decades after the 9/11 attacks, the nation has not yet deeply reconsidered the national security response to the tragedy and whether the rights of citizens have eroded, according to the ACLU of Illinois.
Four or five years after the event, the national conversation began to be about whether the Patriot Act was an overreach that hurt civil liberties. Ten years after 9/11, the dialogue included mixed opinions over whether surveillance of Americans had expanded in a substantive way or at the margins. Twenty years on, ACLU of Illinois spokesperson Ed Yohnka says the verdict is clear.
“Because we never had any of the debate about what was actually effective, we have done it without oversight or very little check on that power over 20 years,” said Yohnka.
Not all the pressure on civil liberties comes from changes in the wake of 9/11, Yohnka acknowledged. Some has come from technological change.
“I think the compilation and massive storage of data and massive movement of data with these new powers created an intersection and a dynamic that really gave government the authority and the capacity to look at more records than they would ever have been able to do," he said.
In part, he said that is use of cloud storage of personal data by businesses that offer the service which are subject to subpoena and a gray area of whether there can be a true expectation of privacy for that location. And Yohnka says computers simply make surveillance more efficient.
He said in the 1960s the FBI had to monitor by hand call logs for people under surveillance. And those logs for two or three people produced carts full of paper copy to go through.
“Now they can get it for millions of people and with the click of a mouse and search it with the click of a mouse,” said Yohnka, adding laws have reduced the level of expected privacy.
“Absent any kind of showing of any criminal activity let alone involvement in terrorist activity, there is this massive amount of information about each of us that is collected,” he said.
"Whether that surveillance is still as broad as complex or ongoing, I think the chill still exists."Ed Yohnka, ACLU of Illinois
It’s not just surveillance that can impact society, it’s the threat of surveillance, Yohnka said. Ten years ago, there was concern whether authorized surveillance mechanisms would have a chilling effect on free speech among Muslim and other minority groups targeted for investigation.
“Whether that surveillance is still as broad as complex or ongoing, I think the chill still exists,” said Yohnka.
The ACLU of Illinois believes the nation’s outwardly facing responses to 9/11 should also be reconsidered in a couple ways.
“I think the first is this notion and idea of indefinite detention encapsulated by Guantanamo but included black sites and other things. I don’t know whether we ever got to a resolution that made clear that behavior is unlawful and should not be tolerated. I would argue that when you say someone is beyond the law it creates a circumstance where one can treat people in the way that they are beyond the law that’s what led to a lot of the torture that we saw,” said Yohnka.
The pendulum of public opinion has clearly swung over the years on that issue and torture has come to be widely decried, but Yohnka said it’s still a concern.
“When you still have locations in which you can hold people beyond the reach of the law, those things are still possible,” he said.
The second issue Yohnka said the nation is still grappling with is built-in discrimination and bias put in the immigration system for people from majority Muslim countries.
“Whether that is something as graphic as the Muslim ban, or whether it’s the kind of heightened scrutiny and searches that people who have Muslim surnames or Arab and south Asian surnames suffer when they return to the United States, we see those things continue to still be part of the environment in which we live today,” said Yohnka.
Several things have prevented these issues from resonating with more force in society, he said. There are still millions who vividly feel the shock and pain of Sept. 11, 2001. And whenever questions are raised about civil liberties, political leaders have a tendency to point back to that day. He said it cushions criticism of excesses.
Yohnka said the passage of time also has reinforced early messages that it was either patriotic to put up with all of this or that it was just some new normal we had to expect. And for people born after 9/11, he said this is just how things have always been.
The final issue, Yohnka said is an undertone of the dilution of rights is not important to citizens because "you know who we’re really going after."
“I think that kind of wink and nod to discriminatory enforcement has always been an element of these things and to some extent has been successful because people believe it is really only affecting Arab and Muslim communities,” said Yohnka.
Yohnka remains hopeful the national conversation will happen. He said the U.S. House Minority leader recently complained in a letter to telecommunications companiesabout their preservation of records to possibly turn over to the Jan. 6 commission. Yohnka said that representative has voted for that power several times. Yohnka said Congress has not looked at these issues in an objective and impartial way in two decades, but perhaps a second kind of 9/11 commission could do that work.
A historical parallel, Yohnka said, is the swing back in national thought to reject the internment of Japanese Americans during World War II. He said the nation is still waiting for that swing on the erosion of privacy following 9/11.
And even the passage of two decades may be too soon to expect that to happen. Yohnka said in the Japanese internment example, the passage of time and the accumulation of a historical record about what did or did not keep the country safe helped reconsideration.
“I think as historians and others continue to look at the surveillance state a lot of these same kinds of questions about its efficiency and effectiveness and it will present the opportunity still to revisit those questions,” he said.
