Privacy and due process are the bedrock of what Americans mean by liberty — the guarantees that stand between the individual and unfettered government power. But the line between legitimate and illegitimate intrusion is never harder to hold than when the subject is national security, and in the weeks after September 11 the country redrew it in a hurry. What did we give up, what did we get for it, and who has been paying the price ever since?
In this TalksOnLaw interview, Joel Cohen sits down with Susan Herman, who led the American Civil Liberties Union as its president from 2008 to 2021 and taught constitutional law at Brooklyn Law School for forty-six years, retiring as its inaugural Ruth Bader Ginsburg Professor of Law. Drawing on the ACLU's own docket and her book on the subject, Herman walks through the post-9/11 architecture piece by piece — surveillance, material support, the watchlists — and the people caught in it.
The Dragnet and the One Percent Doctrine
Herman starts with the Patriot Act, passed five or six weeks after the attacks and running to several hundred pages that, she suspects, no one has read straight through. Its animating idea she traces to Vice President Cheney's "one percent doctrine": if there is a one percent chance an action would catch a terrorist, take it, even knowing the net will haul in the innocent. The metaphor she offers is the dragnet — bulk collection of everyone's records on the theory that to connect the dots you must first collect everyone's dots. To the familiar shrug — "why should I care what the government knows if I've done nothing wrong?" — she answers that giving up on privacy means giving up on democracy. What you post on Facebook is your choice; the government, unlike Amazon, can arrest you, and no one chooses to share the 2:30 a.m. phone call or the call to the abuse hotline.
Material Support: Radioactive Terrorists
The Act also expanded the material-support laws, which push the point of prosecution back well before any attempt or conspiracy. A donation to a Hamas-run nursery school is a crime, because money is fungible; aid routed through Tamil Tiger territory after the Sri Lankan tsunami was a crime; the only exceptions are medicine and religious texts. Herman recounts Holder v. Humanitarian Law Project, in which peace activists who wanted to teach the Kurds and the Tamils to petition the United Nations instead of picking up guns learned that "expert advice or assistance" to a designated group is forbidden. Justice Sotomayor asked at argument whether teaching a terrorist the harmonica was covered; Solicitor General Kagan conceded that even writing a legal brief for one would be. The Court upheld the statute six to three. Designated groups, Herman says, are meant to be radioactive.
Watching the Mosques and the Libraries
Herman turns to the New York Police Department's mapping of where Muslims lived and its infiltration of mosques and political groups without individualized suspicion — a program that, by the department's own account, produced not a single lead — and to the imam in the ACLU's Raza lawsuit who reported that attendance fell once congregants suspected the man beside them was an informant. Then comes the story she considers the heart of the matter. Section 215 let the government obtain any records about anyone from a secret court on a bare assertion of relevance, and when Connecticut librarians objected, the Attorney General announced the provision had never been used — while the FBI issued hundreds of thousands of National Security Letters, with no judge involved at all, each carrying a gag order that forbade the recipient from telling anyone, apparently including a lawyer. One librarian could not answer his teenage son's question about why the FBI was after him. The Library Connection librarians and an internet provider named Nick Merrill — "John Doe" through years of litigation against a rotating cast of attorneys general — challenged the gags and won, but not in time to testify before Congress voted to renew the law.
The No-Fly List and the Subway
The same secrecy runs through the watchlists. Herman describes the redress letter that neither confirms nor denies you were ever listed; the Gulf War pilot fired after a neighbor reported that his broken back seat was a bomb retrofit; and the disabled Marine stranded in Egypt with his newborn, told he was free to come home — by boat, or by walking across from Ciudad Juárez. That case was never settled; the courts ultimately upheld the government's revised redress process in 2019. Closer to home, she recounts the Kashmiri-American Brooklynite stopped twenty-one times under the subway's supposedly random bag-search program, odds a statistician put at one in 165 million. The people who know these systems best, she observes, are Muslim men, for whom even a beard becomes a calculation about getting on a plane — and Congress, she notes, has never seriously asked whether any of it made the country safer.
Inverting Democracy
Asked what keeps her up at night, Herman answers with two futures: the next president who inherits all of these tools, and the next tragedy. She closes with Elaine Scarry's observation that the Patriot Act inverts the conditions of democracy — the government knows everything about us, and we may know nothing about it — and with the Chilean writer Ariel Dorfman's warning about where that road leads.
What to Know Now
Much of what Herman describes has since shifted, in both directions. Section 215 expired in March 2020 and was never renewed. The larger surveillance authority, Section 702, was reauthorized in 2024 and then lapsed in June 2026 when Congress deadlocked over reforms; collection has continued under court certifications that run into 2027, and the reauthorization fight she would recognize remains unresolved. Carpenter v. United States extended Fourth Amendment protection to cell-phone location records, a partial answer to her dragnet concern. The National Security Letter gag she found so chilling was rewritten to require judicial review, and the revised procedure was upheld. Raza settled in 2017 with rules barring NYPD investigations based on religion and a civilian representative inside the department's oversight process. The no-fly list produced two unanimous Supreme Court decisions: Tanzin v. Tanvir allowed Muslim men placed on the list for refusing to become informants to seek damages from the agents responsible, and FBI v. Fikre held that the government cannot moot a challenge by quietly removing someone from the list while reserving the right to put him back. Trump v. Hawaii upheld the travel ban, and Holder v. Humanitarian Law Project remains the law. Her warning about the next administration inheriting these tools has now been tested more than once — and her diagnosis, that secrecy is what prevents repair, is the frame in which the current fight is being fought.
