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CounterPunch
September
25, 2002
American Civil
Liberties Post-9/11
Are They
Truly in Jeopardy and are They Relative or Absolute?
by EDWARD LAZARUS
On the eve of the first anniversary of September
11th, the New York Times Op Ed page brought into focus the deepening
debate over the protection of civil liberties in a nation newly
vigilant to the danger of large-scale terrorist attack. Among
a dozen essays published by the Times were diametrically opposed
assessments by two leading public intellectuals--Judge Richard
Posner, the polymath who sits on the U.S. Court of Appeals for
the Seventh Circuit, and Kathleen Sullivan, the highly respected
Dean of the Stanford Law School.
In Judge Posner's view, September 11
has brought a welcome reassessment of the scope of our civil
liberties which, according to Posner, previously "seem[ed]
immune from critical reflection." These liberties, Posner
asserted, are simply the creations of Supreme Court justices
based on brief and obscure snippets of constitutional text. As
such, they are appropriately expanded or constricted as "the
balance shifts" between our concern for public safety and
our concern for personal liberty. In short, as Posner would have
it, our civil liberties are relative and contextual--and must
be redrawn now as the nation faces what Posner assesses to be
the greatest danger to national security since Pearl Harbor.
Kathleen Sullivan draws the opposite
conclusion. For Sullivan, America's historical tendency to constrict
civil liberties in wartime is a subject of profound regret, not
an acceptable trade-off of liberty for security. Sullivan memorably
observes that "Constitutions, like diets, are meant to restrict
us most when temptation is greatest." Indeed, in her view,
a Constitution that defies the contextualization and relativism
Posner champions "is our greatest protection from terrorism
in the first place."
Posner's and Sullivan's comments capture
the views expressed by various conservative and liberal thinkers,
yet their comments--more clever abstraction than trenchant analysis--shed
little light on what concerns we should or should not have about
the real changes that are taking place post-September 11.
Why Sullivan
and Posner Are Both Right--And Why They Don't Reach the Real
Issue
Surely Posner is right that our civil
liberties depend at least in part on circumstance and exigency.
These notions are built into the text of the Constitution itself,
as in the Fourth Amendment's ban on "unreasonable searches
and seizures or the Fifth and Fourteenth Amendments' promise
of due process of law.
Inevitably, whether a search or seizure
should be deemed "unreasonable" will depend on context.
In the face of more serious and immediate threats to public safety,
judges--reflecting society as a whole--are sure to tolerate a
greater level of intrusion on personal privacy. Similarly, our
collective sense of how much process is "due" before
government takes certain actions will vary with the exigencies
of the time.
What is unreasonable in time of peace
(arduous airport searches) may be reasonable in time of war.
In wartime, less process may be due in some instances and--though
this is rarely noted--more may be due in others. Indeed, the
"flexible civil liberties" position is not necessarily
a conservative or anti-defendant one; it simply reflects the
reality that rights can and do change with the push and pull
of history. At base, then, Posner's view is a mere truism.
At the same time, surely Sullivan's view
is a truism at its heart as well. Sullivan is surely right--and
few, indeed, would deny--that the need for a vigilant application
of constitutional principles (even contextual ones) is heightened
during times of national emergency. If history is any guide,
exaggerated claims of national security have been used to cover
a multitude of sins--and with the acquiescence of the judiciary.
The Japanese internment during World
War II--which combined the military's exaggerated security concerns
with a hefty dose of plain old racism and an exceedingly timid
judiciary- provides the classic example. (The Supreme Court famously
blessed the atrocity in Korematsu v. United States.) But from
the Sedition Act of 1798 to the McCarthy hearings of the Cold
War, every crisis (real or imagined) has left a record worthy
of some regret.
The real question then is how to reconcile
two truths: first, that the Constitution itself accommodates
a tightening of civil liberties to provide for national security;
and, second, that the nation has a mixed history of appropriately
fashioning such an accommodation.
How Can We
Render Civil Liberties Flexible But, At the Same Time, Indestructible?
The answer, it seems to me, depends on
a rigorous scrutiny of exactly what government proposes to do
in the name of national security and the justifications that
government offers for its proposals. The constitutional contract
between the people and their government is flexible enough to
meet the needs of a true emergency. But when government seeks
to bend the usual rules, it owes a duty of explanation and demonstration.
How will a particular new procedure advance our security? By
how much? And how do we know?
Say, for instance, that the government
wants to use ethnic profiling to screen for terrorists. I've
never been a fan of such profiling. It has the unavoidable effect
of subjecting totally innocent people to intrusive government
scrutiny merely on account of an immutable characteristic--making
them feel, quite rightly, like second-class citizens.
However, I suspect that government could
make a pretty good case for suspending the usual rules, now that
we are confronted with a terrorist threat that, generally speaking,
fits an ethnic (as well as gender and age) profile. Frisking
Chinese-American grandmothers at the airport, for instance, seems
to be a waste of valuable law enforcement resources. And the
corollary may be that increasing airport scrutiny on young men
who originate from countries the U.S. has listed as supporting
terrorists makes some sense. Obviously, harassment is never justified,
but targeted luggage searches might be.
The Need to
Justify Civil Liberties Infringements By Giving Specific Reasons
and Evidence
Unfortunately, the civil liberties trade-offs
that the Bush Administration has demanded have, to date, come
with inadequate explanations. For instance, in plain terms, how
does the mass closure of immigration hearings advance our security?
Wouldn't closing them on a case-by-case basis, when security
concerns are at their height, more than suffice?
Similarly, what is the non-political
justification for vastly expanding the category of "enemy
combatant"--so that it encompasses even American citizens
such as Jose Padilla? And, for that matter, what are the non-political
justifications for holding U.S. citizens in military brigs without
access to counsel, and for seeking to curtail judicial review
of executive branch actions?
Obviously, detaining citizens forever,
regardless of the justification, and never having a court overrule
the President's action are both good for the executive branch--which
then never has to face the embarrassment of having let free a
wrongdoer, or getting rebuked by a court. But are these policies
good for the American people, over the long run? The case has
not yet been made.
Without More
Information, It is Impossible to Tell If Liberties Are Wrongly
Constricted
By failing to provide compelling justifications
(and by pursuing strategies that appear impossible to justify
plausibly, so broad-sweeping are they), the Administration actually
undermines our security in a deeply troubling and potentially
significant way.
It's bad enough that the lack of justification
calls into question some of the Administration's specific initiatives.
But far worse, the Administration's high-handed, everything-must-be-secret,
we-know-best approach sows seeds of doubt around any proposed
trade-off of liberty for security. Even well-justified tradeoffs
may seem arbitrary. Even sensible actions may seem irrational
if the reasons behind them are never revealed.
Simply put, it's hard to know where the
executive branch power grab stops, and real security needs begin.
And that uncertainty will make lots of people, not to mention
judges, reluctant to make any trade-offs, even those that society
would be better off making.
Many of the choices are damn hard. I'm
inherently suspicious of the secret foreign intelligence court
that approves wiretaps in national security cases. But if the
executive branch did not seem to be so cavalierly overreaching
in other areas, I'd be much more likely to entertain the thought
that it might actually be a good idea to vest additional powers
in such a court.
In sum, as a matter of theory, I'm happy
to buy into Posner's trade-off of liberty for security. But the
government has to tell me what the specific price of freedom
is, and what I'm really getting in the bargain. That's one sales
pitch I yearn to hear.
Edward Lazarus
is a former supreme court clerk and law professor. He is
the author of two highly acclaimed books: Black
Hills/White Justice: The Sioux Nation Versus the United States,
1775 to the Present and Closed
Chambers: The Rise, Fall, and Future of the Modern Supreme Court.
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