American Civil Liberties After 9/11

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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