Preparing for the Terrorist Threat
By Jon Basil Utley
http://www.InsideTheWeb.com/messageboard/mbs.cgi?acct=mb1075995


A congressional advisory panel reports that a national strategy is needed to
defend against terrorist attacks, but some plans would have us give up our
civil liberties.

The potential for terrorist attacks inside U.S. borders is a serious,
emerging threat,” warns Republican Virginia Gov. James Gilmore. Gilmore is
chairman of a congressionally mandated panel studying the changing threat to
U.S. security and what kind of responses the nation will have to make. What’s
needed, according to Gilmore, is a “truly national strategy” with the
creation of a “National Office to Combat Terrorism” reporting to the
president. Moreover, the national office would be overseen by a new joint
congressional committee. The implications for the future of American society,
the way it is organized, and the implications for civil liberties are just
now beginning to be examined by a number of groups.

Gilmore, who is chairman of the Advisory Panel to Assess Domestic
Response Capabilities for Terrorism Involving Weapons of Mass Destruction,
emphasizes that groups seeking to influence U.S. policy or perpetrate revenge
have the capability to inflict serious actual and psychological damage on the
nation. “America is prepared but can become better prepared,” he says,
warning that no attack on U.S. cities would “dissuade America from its role
as world leader in an unfriendly world” nor cause “any change in U.S. foreign
policy.” The report warns terrorists of the U.S. government’s great ability
to detect those responsible for past terrorist acts.

Gilmore’s commission tackles head on the difficult problems involved
in cracking down on potential terrorists and the “protection of civil
liberties.” The report quotes the warning of Ben Franklin, “They that can
give up essential liberty to obtain a little temporary safety deserve neither
liberty nor safety.” It insists that troops involved in domestic actions
against mass terrorism must be under civilian control, but it does not
address practical issues such as sunset provisions for seizures,
specification of any rights of appeal or other problematic questions. Budget
needs, legalities involved in the triage of victims, resources to support
treatment of mass casualties and/or panic flight from cities are left to be
addressed by the new national office.

However, other experts are looking at these problems. The Center for
Strategic and International Studies (CSIS), a Washington think tank, finds
that “an effective response cannot be undertaken unless the necessary legal
framework is in place” and that the “health arena presents the most urgent
need for legal reform.” CSIS has just concluded a long, detailed study,
Combating Chemical, Biological, Radiological and Nuclear Terrorism.

But perhaps the most far-ranging look at the legal structures to deal
with a new type of warfare took place at the American Bar Association’s
meeting last month on national-security law. Attended by top military and
civilian antiterrorism officials, the gathering, which takes place every
year, focuses on what specialists call catastrophic terrorism (CT).

ABA’s legal experts concluded that federal and state governments had
the legal authority to take pretty much any action they thought necessary in
the event of a major terrorist nuclear or biological attack. Nevertheless,
they found that the various levels of government all were woefully unprepared
and likely to work at cross-purposes against each other. Many of the laws on
the books, they discovered, were conflictive and contradictory.

Hospitals, for example, were described as subject to a “host of legal
issues.” Administrators would face existing law on equal access that requires
complete, free care for every individual brought to an emergency room, even
if hundreds or thousands of citizens suddenly were injured or ill. According
to Tara O’Toole, deputy director of Johns Hopkins Center for Civilian
Bio-defense Studies, no triage decisions are permissible under current law;
hospitals could face the threat of catastrophic lawsuits, even years later,
if they operated on any basis except attending all patients equally. She also
described other problems: More than 1,000 hospitals have been closed during
recent years because of competition, and most work on a “just in time” basis
for purchasing drugs and staff services. Thus there is very little redundancy
or “surge capacity” in the entire U.S. hospital system.

Another speaker questioned the priorities of the vast amount of new
spending on civil defense. The New York Times reported that civil-defense
spending has totaled approximately $10 billion so far, but funding has been
directed toward training and protecting government personnel and facilities
with only 2 percent, or about $200 million, for civilian preparations such as
storing medicines (antibiotics cure anthrax if started early) and other
measures. However, the Gilmore report states that the Centers for Disease
Control and Prevention in Atlanta recently launched the Epidemic Information
Exchange to “simplify and expedite … public-health information between CDC
and state health departments.” CDC also has contracted for 40 million doses
of smallpox vaccine.

O’Toole described how New York City’s health department still uses
pins on a map to track problems and has very limited resources to prepare for
any disaster. The city of Denver practiced a mock plague attack last June
where the infected would be isolated and allowed to wait for death, a
practice that would be contrary to existing laws. She described how
biologists were not accustomed to dealing with government and often were
“aghast at the slow pace” of bureaucratic response.

Juliette Kayyem of Harvard University’s School of Government presented
a paper on “The Law of Catastrophic Terrorism.” Declaring that “domestic
preparedness must include legal preparedness,” Kayyem boldly set aside
civil-liberties issues. She complained that many outdated laws go back one or
two centuries but are almost never taken off the books because politicians
are afraid to appear weak on terrorism. The 1996 Anti-Terrorism Act updated
some old anticommunist laws to apply them to terrorists. It was followed by
the Comprehensive Anti-Terrorism Act of 2000. But broadly speaking, CT is
affected by the rules of war, a possible declaration of martial law by the
president, the Bill of Rights and the laws of disasters (which mainly are
intended to cover situations created by hurricanes and earthquakes).

Kayyem drew up a list of legal powers which authorities might seek and
current laws which, in the opinion of disaster officials, prohibit or curtail
necessary government authority. Her analysis makes a chilling list, which
includes:

seizure of community and private assets — including food, water, vehicles, as
well as possible price controls on necessities;

control of transportation terminals, including airplanes, railroads, trucks
and buses;

utilization of the military for civil control;

control of access to communications — including restricting media access to
damaged or threatened areas;

legal issues relating to quarantine;

reinterpretation of criminal-law constitutional standards for warrants and
searches which should be made broader to allow for widespread surveillance;

warrantless detention of individuals for short periods of time — something
that is allowed now only for resident aliens;

investigation of groups before the requirement of “reasonable suspicion” is
met;

granting broad state authority over corpses to perform autopsies relating to
cause of death;

ordering production of necessary goods; and

ordering citizens to take medicines.

Scott Stucky, general counsel of the Senate Armed Services Committee,
said that there was “solid legal authority to use the military for CT.” He
said that the “Posse Comitatus Act” was mainly “smoke and mirrors,” that it
was statutory, not constitutional, and that any penalties under it only could
apply to the civilians who ordered the military to act, but not against
soldiers themselves. Stucky said that the military was not trained for
domestic actions and not at all in the field of constitutional liberties and
civil rights.

With regard to press freedoms, the panelists stated that, with the
Internet, government would find it impossible to limit press autonomy.
Stephen Dycus, a professor at Vermont Law School, said that a president could
declare martial law but that it was not clear if that would allow press
controls and closing down of offensive Internet sites within the United
States. O’Toole argued against censorship, stating that it would be vitally
important for the government to have credibility with the public. Kayyem
argued that censorship would be necessary to prevent mass hysteria and for
efforts to control civilian exodus.

Jon Basil Utley is the Robert A. Taft Fellow in Constitutional and
International Studies at the Ludwig von Mises Institute. He is a former
associate editor of The Times of the Americas and worked in South America as
a correspondent for Knight-Ridder Newspapers.
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