Liberty's Paradoxes

Must We Surrender Freedoms in Order to Remain Free?


The day before Labor Day, I flew to Colorado Springs to teach a three-week course at Colorado College. When I flew home to New Jersey at the end of the month, it was in a different world—one where I had to move my nail clippers from my carry-on bag to my suitcase before boarding the plane, armed federal marshals were conspicuously patrolling the airports, and a disfigured Manhattan skyline was visible from the plane's windows as it approached Newark Airport.

America launched fighter jets against the Taliban regime in October, but psychologically, we have been at war since the attacks on the World Trade Center and the Pentagon. War—to state the obvious—is generally not a good time for advocates of smaller government. Indeed, liberals' anti-militarist instincts often coexist (uneasily, one imagines) with a pronounced affection for the public spirit generated by war and other emergencies. In the October 22 issue of The American Prospect, Jeff Faux, president of the leftist Economic Policy Institute, waxed enthusiastic over the statist lessons allegedly to be learned from the tragedy: "How ill served we have been by a politics that perpetuates the illusion that we are all on our own and holds the institutions of public service in contempt."

Unfortunately for liberals, the growth of government and the turn from individualism in wartime extends not only to economic matters but to civil liberties. American history offers a number of unfortunate reminders of this fact, from the suspension of habeas corpus during the Civil War to the evisceration of the First Amendment during World War I to the internment of Japanese-Americans during World War II. In the aftermath of the September 11 attacks, the Bush administration quickly proposed legislation that would expand the federal government's wiretapping and cyber-surveillance powers and allow the indefinite detention, without filing charges and without judicial review, of foreigners suspected of terrorist connections.

There's little doubt, too, that the national mood has shifted in a pro-government direction. It is perhaps symbolic that New York Mayor Rudolph Guiliani, recently widely assailed for his authoritarian tendencies (even by those who applauded the anti-crime initiatives of his first term), emerged as the can't-do-wrong hero of the moment. Not surprisingly, there is widespread support for federalizing airport security, a task currently entrusted to the private sector. Various polls show that up to 80 percent of Americans expect and accept some abridgments of individual freedom to combat the threat of terrorism. Polls, of course, should not dictate policy, but they act as a proxy for what government is likely to try to do.

How should champions of individual liberty respond? Line up as the usual suspects on the other side, opposing every measure that would increase the size and power of government and quoting the maxim that those who would sacrifice liberty to gain safety end up having neither? Or is this where we stop to ponder the possibility that the preservation of freedom may require some unpleasant compromises, not only to safeguard ourselves from terrorism but to prevent worse encroachments of freedom further down the road?

"We've been having an academic discussion and holding our breath in this area for several years. We can't do that anymore," said Senate Minority Leader Trent Lott (R-Miss.) shortly after the attacks. This can—and probably should—be seen as a cynically cavalier dismissal of concerns about civil liberties, a reflection of the mentality that freedom matters only until push comes to shove. Yet, in the face of that nightmarish reality TV show broadcast in September, some of those debates do seem academic. Certainly, we can have no illusions about what we're dealing with. There are people who want to destroy us and our way of life. We have witnessed the length to which they are willing and able to go. Perhaps the real surprise is that it didn't happen sooner. The first bombing of the World Trade Center, in 1993, was itself intended to topple the Twin Towers. (Those earlier terrorists reportedly aimed for a body count of 250,000.) Subsequent to the '93 attack, the government foiled a plot by Islamic radicals to blow up two main roadways into New York City, the Lincoln and Holland tunnels. We have no idea what could happen next, but chemical and biological terrorism loom large on people's minds.

If the form of the next attack is unknowable, this much is clear: The actions and the rhetoric of the terrorists undercut the idea, popular among some libertarians and left-wingers, that our vulnerability to terrorism is itself the fault of the expansionist, imperialist state. According to this line of thinking, if the U.S. government stopped playing GloboCop, withdrew from meddling in regions where we have no real national interest, and limited itself to providing for a national defense, there wouldn't be all those people around the world baying for our blood. This argument is myopic for two reasons.

First, while there is room—and need—for legitimate debate about America's global role and the nature of our true national interests, the notion that we ought to allow the threat of terrorism to dictate our foreign policy is not only humiliating but ultimately self-defeating. What other concessions will various groups around the world try to extract from the wealthiest and most powerful nation on earth once they see that intimidation works?

Second, there is every reason to believe that our current enemies, fundamentalist Islamic militants, are motivated by far more than U.S. support for Israel, the plight of the Palestinians, economic sanctions against Iraq, and the presence of U.S. troops on the Arabian peninsula, the main canards of the finger-pointers. In fact, what makes America the Great Satan in their eyes is precisely what libertarians cherish—"our secular culture of freedom, reason, and the pursuit of happiness," as philosopher David Kelley put it in an eloquent post-attack essay titled "The Assault on Civilization."

We could curb our involvement in world affairs and religious radicals would still want to kill us for corrupting their world with our movies, books, fast-food restaurants, blue jeans, and ideas about women's liberation. The head of the repressive Taliban, Mullah Mohammed Omar, rails at "filthy and ugly Western cultures" which, among other things, "allow women to be dishonored." In a prison interview with sociologist Mark Juergensmeyer (described in Juergensmeyer's 2000 book, Terror in the Mind of God), Mahmud Abouhalima, one of the men convicted in the 1993 bombing of the World Trade Center, said that his holy war was against Western "secularists" who were exporting their way of life to Muslim countries.

Given such a mentality, there is no question that terrorism will remain a threat to our way of life. To guard against it, we'll have to put up with tougher security at airports and in other public places where large casualties are possible. The movements of foreigners will be scrutinized more closely, and there will be a certain amount of racial profiling directed at Middle Eastern men. No matter how much we fight it, the government's powers to monitor private individuals' communications—including e-mail and other forms of electronic communications—will undoubtedly be expanded; the real question is by how much.

It is perhaps the surveillance of electronic communications that most—and most rightly—exercises the libertarian soul. I certainly don't like the idea of the government snooping on e-mail or keeping track of Web addresses I have visited. However, if one accepts the U.S. system of limited government with checks and balances, one also has to accept that the government's proper powers include searches and seizures—as long as they are reasonable and subject to judicial oversight and due process.

Privacy advocates correctly point to significant problems with currently legal methods of e-mail surveillance, such as the infamous Carnivore. These tools enable the government to intercept far more information without a warrant—i.e. without probable cause—than traditional telephone wiretapping. These also allow government agents to act with far less external oversight and thus create far more potential for misconduct and misuse. All these issues need to be addressed and taken seriously. But to address them, we need to recognize that under some circumstances, surveillance of private communication is indeed a legitimate government activity related to one of the most basic functions of government: national security.

Even in this time of terror, Americans aren't prepared to sacrifice freedom mindlessly to security. Polls show that most people are willing to accept minor encroachments on privacy and liberty but reject giving the state blanket powers of surveillance. Some of the more extreme ideas in proposed anti-terrorism measures have already been excised (e.g., national identity cards) or weakened (in the latest version of congressional legislation, the authority to detain foreigners without charges or judicial review will be limited to one week). It goes without saying that, in waging a war on terrorism on the home front, we must tread very, very carefully—particularly since, unlike the foreign wars of the past, this one may well drag on indefinitely and become a permanent state of siege.

American optimism, wonderful as it is, often makes it difficult for us to confront the reality of tragic paradoxes. The technological advances made possible by a dynamic, free, capitalist society have put horrific means of destruction in the hands of people who loathe Western civilization. Deadly force on a massive scale has been privatized—and the results, in some ways, are scarier than the threat we faced from totalitarian empires, because we are dealing with a more elusive, more fanatical, and more desperate enemy. Such tragic paradoxes, alas, will require some tragic choices.