Security Vs. Civil Liberties

Security vs. Civil Liberties

Terrorism's Grip on our Democratic Values

"When there is a true conflict between greater security and preserving historic democratic freedoms, we must do our best to choose wisely - not an easy assignment in times of danger and fear." - Philip Heymann

Terrorism's remarkable ability to generate irrational fear and terror puts U.S. officials in an awkward position. The most serious problem any new terrorist attack will create may be neither the damage it does nor the risk if we fail to adjust our counterterrorism measures appropriately. Instead, it may be the damage it brings, in the long term, to our ethical and legal systems, as well as to our political culture. How can an attack's effects be diminished significantly so that fear and irrationality do not create over reactive policies? Our elected officials are not only responsible for our nation's security, but also to defend our most deeply held values. However, in nearly all instances, terrorist attacks have proven how protecting civil liberties in times of crisis is secondary to enhancing national security. There must be a balance between these two spectrums - I will attempt to recommend what can be done to ensure civil liberties are always protected, even while increasing security.

A chemical, biological, radiological, or nuclear terrorist attack comes with many consequences, whether intended or not. While the contemporary definitions of CBRN terrorism relate to relatively recent instances, the U.S. has dealt with attacks that have created irrational responses since the country's inception.

POLICIES RESTRICING LIBERTIES WHILE INCREASING SECURITY

James Madison created a plan for the United States government that placed citizens' powers above those of the government. He knew however, that the government had its role in administering to the public.

"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed and in the next place oblige it to control itself." -James Madison

Russell Hardin argues in Civil Liberties in the Era of Mass Terrorism that the terrorist attacks of 2001 have seemingly licensed the U.S. government to violate its Madisonian principles. Hardin says "While the current government asks for citizen trust, its actions justify distrust." There are a few particular instances that highlight the problem with the cycle of reactive policies, and why it must be broken.

ALIEN AND SEDITION ACTS OF 1798

One of the earliest instances of reactionary policies to external threats was the Alien and Sedition Acts of 1798. Among other things, the acts authorized the president to deport any resident alien considered "dangerous to the peace and safety of the United States" (Stat. 570), authorized the president to apprehend and deport resident aliens if their home countries were at war with the United States of America (Stat. 577), and made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials (Stat. 596).

The acts were passed by John Adams and federalists during an undeclared naval war with France. They were intended to protect the United States from aliens who sought to undermine America's political system. It is hard to see how these acts could be considered to be Constitutional, but James P. Martin argues in his article When Repression is Democratic and Constitutional that the time period allowed the Federalists to pass the acts. Martin says the Federalists believed that the public interactions and debates that are a part of any democracy should take place via the representative mechanisms that operate through the legal institutions of the state. In other words, elected officials deliberated for the people and in their place, just as they still pass legislation on behalf of the people and in their name.

The Alien and Sedition Acts are an example of how the federal government can curtail civil liberties in the name of security. Many aliens fled the country during the debates of the acts, but President Adams never signed a deportation order.

LINCOLN SUSPENDS THE WRIT OF HABEAS CORPUS

Another instance highlights the importance of the U.S. court system in protecting liberties. During the Civil War, Abraham Lincoln denied the right of habeas corpus to Confederate soldiers. James Dueholm says in his article Lincoln's Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis:

Under the Constitution the federal government can unquestionably suspend the privilege of the writ of habeas corpus if the public safety requires it during times of rebellion or invasion. The issue is whether Congress or the president holds this power...[Supreme Court Justice] Taney issued his opinion that only Congress could suspend the writ of habeas corpus. He observed that the limitation on suspension of the writ appeared in Article I of the Constitution, dealing with legislative powers, not in Article II, which established executive power.

Dueholm recognizes that the Courts should ultimately be the last word on Constitutional matters. However, Lincoln ignored Justice Taney, and that was the end of the federal judiciary's involvement with the suspension of habeas corpus. We can understand Lincoln's justification for ignoring Justice Taney's opinion, however the unintended consequences of this decision resonate today.

Philip Heymann is one of the leading experts in examining the relationship between terrorism and civil liberties. In his book Laws, Outlaws, and Terrorists co-authored by Gabriella Blum, we see how executive wartime power is a dangerous thing:

A claim of ultimate presidential authority to bypass legality in the name of saving lives or protecting the country might be tenable in some circumstances; however, for reasons that are peculiarly American, such claims are nearly always doomed to fail if they directly challenge that aspect of the rule of law that we identify with the finality of Supreme Court decisions. Lincoln's refusal to honor habeas corpus during the Civil War, despite the Court's order, was a rare, if notable, exception.

Heymann and Blum acknowledge how Lincoln's decision is a rare exception to abused executive power. Lincoln did not misuse his power, but his decision had Constitutional ramifications nonetheless. Heymann and Blum argue that the critical question for the courts is how to exercise the power