Guarding the Home Front

Will civil liberties be a casualty in the War on Terrorism?

From the December 2001 issue

If the first casualty of war is the truth, the second casualty is often the liberty of law-abiding citizens. In the wake of the horrific September 11 attacks on the World Trade Center and the Pentagon, the United States declared total war on terrorism. President George W. Bush has laid out some of the sacrifices the government will demand of its citizens: "You will be asked for your patience, for the conflict will not be short. You will be asked for your resolve, for the conflict will not be easy. You will be asked for your strength, because the course to victory may be long." He has also insisted that "we must make sure that the law enforcement men and women have got the tools necessary, within the Constitution, to defeat the enemy."

Despite the nod to constitutional restraints on police power, some of the tools Bush and other politicians have proposed -- national I.D. cards, roving wiretaps, indefinite detainment of suspects, lower burdens of proof, intensified surveillance, and much more -- raise serious questions about the government's commitment to civil liberties. In late September, reason asked a panel of experts to discuss which civil liberties they thought were most at risk in what has been called America's first 21st century war.

Enough Already

Jerry Berman

My first fear is that the government will expand intelligence investigations and break down the wall that Congress established after Watergate to prohibit the kind of surveillance that was conducted against domestic dissent during the civil rights and Vietnam War eras.

Under the Foreign Intelligence Surveillance Act, the intelligence community already has vast authority to conduct intelligence and criminal investigations of terrorist activities. Our intelligence community can already conduct secret electronic surveillance, engage in secret searches, and plant bugs against terrorists. The act covers foreign powers and terrorist enterprises. It applies overseas and in the United States and allows wiretapping, bugs, and surveillance directed at Americans, as well as foreigners, who may be engaged in terrorist activities on behalf of enterprises like bin Laden's network. The standard for this surveillance is less restrictive than what we require for domestic criminal surveillance.

The attorney general wants to change the primary purpose of those taps from intelligence, which is why they get a lower standard, to any purpose, meaning they could be used for criminal investigations. This would vastly expand federal authority to use surveillance without probable cause.

Federal agents still need to make the case that the expanded powers for which they are asking are necessary. To date, there has been no evidence, either from classified briefings or any public source, that restrictions in the law hindered their efforts to know about bin Laden and his associates. It wasn't a restriction breakdown. It was an analysis breakdown.

Jerry Berman is the executive director of the Center for Democracy and Technology, a high-tech civil liberties and Internet policy organization. He has worked on all the intelligence guidelines passed since Watergate.

Government's Loaded Weapon

Clint Bolick

Detention without trial. Racial profiling. Electronic surveillance. National identification cards. The growing list of proposals in the wake of the September 11 attacks makes it tough to single one out as the most threatening to our civil liberties. Much depends on the contours of the power, how it's exercised, and whether it has an end point.

More worrisome is the notion that our civil liberties are subject to cancellation in times of crisis. Our Constitution seeks to protect rights the Framers deemed inalienable. It faces its gravest tests in times of crisis.

We have traveled this road often before, and we should draw upon the lessons of history. In his dissenting opinion in Korematsu v. United States, which upheld Japanese internment camps, U.S. Supreme Court Justice Robert H. Jackson wrote that "a judicial construction...that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself....[O]nce a judicial opinion rationalizes the Constitution to show that [it] sanctions such an order...the Court for all time has validated the principle of racial discrimination....The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." What other principles are we prepared to sacrifice?

With determination, we will get past this crisis. The question is: Will we do so with our constitutional system -- the cornerstone of our free society -- fully intact? If not, the terrorists will have extracted even more grievous costs than those already apparent.