Tuesday, May 08, 2007

Civil Liberties v. Security

The quest for a balance between the competing interests of public security and civil liberties is as old as the nation itself. Ever since the passage of the bill of rights, there has been a tension between the constitutions provisions for individual liberty and the quest for a secure nation. On a number of occasions this balance has swung dramatically toward national security: the 1798 Alien and Sedition Act,[1] Abraham Lincoln’s suspension of habeas corpus during the civil war, censorship of newspapers during the First World War, internment of Japanese Americans during the Second World War and the opening of mail destined to the USSR during the cold war.[2] The civil liberties versus security debate, is most acute during times of war or national emergency, as the historical examples above show.
It would seem that Americans have no problem with infrequent and fleeting abrogation of their civil liberties if they are curtailed during times of national emergency.[3] And the legal community would seem to be in consensus on the fact that competition between public safety and civil liberties is likely to swing back and forth depending on the time period and specific situation: “They [security interests and liberty interests] are both important, and the relative importance changes from time to time and from situation to situation.”[4] The historical record shows that serious curtailment of civil liberties has been infrequent and usually short lived, and there has actually been an expansion of civil liberties over the years despite the momentary – though at times unfortunate – curtailment of civil liberties: “Despite a succession of wars and emergencies since the civil war, civil liberties in our country have expanded.”[5]
However, we must ask whether the current emergency the nation faces (aftermath of 9/11 and the War on Terror) is indeed the same as the previous wars and emergencies, both in form and duration and whether we need to reassess the balance between security and liberty: “American institutions tend to look for ‘quick fix’ situations to problems. American policymakers must recognize, however, that the danger posed by Al Qaeda is not a short-term crisis but a long-term security dilemma for the United States. If Congress rushes to enact anti-terrorism legislation in the aftermath of every attack, not one can deny that Americans will lose their liberty over the long term.”[6] The threat posed by Al Qaeda is indeed different than any previous emergency; the nation is dealing with and amorphous, stateless and stealthy enemy that can not be dealt with using military means alone. Aggressive police and intelligence techniques are need to deal with this threat, techniques that are likely to be more intrusive and clandestine in nature, and likely to abrogate individual liberties.[7]
Taking into account the nature of the threat and the likely longevity of the current conflict, it is incumbent upon all facets of society to insure that a crucial balance between Civil liberties and security is maintained, such that security is maintained and liberties are not unnecessarily trampled on. The government (all branches and levels), the media, civil society and the public have roles to play in this quest.
The Executive branch has to ensure that the public understands that the nation faces a different threat, and thus new methods to deal with the threat. The government needs to convince the people that there is a premium to pay for protecting them, a premium that may require some curtailment of liberties.[8] It is also incumbent upon the executive (and legislature) to develop programs and techniques that are effective, and narrowly tailored, thus not unnecessarily affecting large segments of society.[9] In addition, these methods need to be reviewed constantly to insure effectiveness and impact.[10] The legislative branch also has to play an active role in the development of programs and laws to deal with the terrorist threat. Moreover, the Congress can play a very critical role in the review of programs, especially through its oversight process: “Americans want programs that aggressively fight terrorism and protect liberties. Congress and the administration have a responsibility to meet these demands. Congress’s intelligence committees should continue to exercise oversight over the NSA’s activities and undertake what investigations they feel is necessary to ensure that the program is carried out in a way that efficiently and effectively protects Americans while safeguarding their liberties.”[11] The Courts also have a critical role to play in this balancing act, as the protectors of the constitution, judicial review of government programs is crucial to ensure that civil liberties are not unnecessarily affected.[12]
However, the government can not be left to shoulder this enormous challenge of balancing. The media, civil society and the public have a role to play in the balance. It is incumbent upon the media to investigate the programs that government has enacted and ensure “sunshine” is shown on those methods that may not live up to the nations high ideals[13]. It is also the media that can provide the necessary information and context to inform the public about the threat and the government’s effort to deal with the threat. It will take the efforts of the media and a knowledgeable public to protect civil liberties in a time of emergency: “The watchful eye of the courts, Congress, the press and the public ensures this trend [limited government encroachment on liberties, and avoidance of overreaches like the internment of Japanese Americans] will continue.”[14]
The current war on terror is different and requires novel intrusion into the liberties of Americans. It is incumbent upon all segments of society to ensure that a health balance is struck between civil liberties and public security.
[1] Rosenzweig, Paul: “Balancing Liberty and Security” The Heritage Foundation, May 14, 2003 www.heritage.org/press/commentary/ed051403a.cfm?Renderforprint=1. retrieved 3/7/2007
[2] Gould, Jon B. “Playing with fire: The Civil Liberties implications of September 11th” Public Administration Review (2002), p. 3
[3] Gould,4: Provides a catalog of recent (2001-2002) opinion polls that show Americans were willing to accept curtailment of their rights after 9/11
[4] Posner, Richard A “The Law: Security versus civil liberties” The Atlantic Monthly online, www.theatlantic.com/doc/doc/print/200112/posner retrieved 3/7/2007. The Late Chief Justice William Rehnquist came to a similar conclusion about the swing toward order during emergencies (Gould, 2). See also Yoo, John and Posner, Eric: “The Patriot Act under Fire” American Enterprise Institute: http://www.aei.org/publications/pubID.19661,filter./pub_detail.asp retrieved, 3/7/2007
[5] Yoo and Posner, 2
[6] Lynch, Timothy: “Threats to Civil Liberties: The Patriot Act” The Cato Institute, http://www.cato.org/pubs/handbook/hb109/hb_109-19.pdf pp. 204
[7] Lynch (199-202) and Gould (1) provide a list of the new techniques and laws that have been articulated in the patriot act. Such as, a lower threshold for issuance of wiretapping warrants, sharing of information between domestic law enforcement and the intelligence services, and increased scrutiny of financial records.
[8] Gould (3) Points out that this needs to be an ongoing process, because the public is likely to be less willing to accept curtailment of liberties as the memory of 9/11 slowly fades.
[9] Gould (4) argues that Americans are likely to be more supportive of methods that do not discriminate, however as Carafano et al point out, the utility of certain methods is likely to be most effective when tailored to a particular segment of society that would be deemed a threat. Carafano James, Gaziano Todd and Kochems Alance: “Domestic Surveillance: Dual Priorities, National Security and Civil Liberties, Must Be Met” The Heritage Foundation: Web Memo. www.heritage.org/research/HomelandDefense/wm950.cfm?renderforprint=1 retrieved 03/07/2007 retrieved 03/07/2007
[10] The Warrant less NSA wiretap program is a good example of a narrowly tailored (only external communications with known terrorists) and reviewable (every 45days) program. For more details on the program see Carafano et al (fn9)
[11] Carafano et al, pp.2. The Sunset clause that was placed on the original Patriot Act which made the law reviewable every five years is also a good example of Congress ensuring programs are narrowly tailored and reviewable (Lynch, 201)
[12] The 2006 strike down of the Administration detainee tribunals is a good example of Judicial Review. For more on the case, see “High Court Rejects Detainee Tribunals” The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062900928.html retrieved 03/07/2007
[13] Whereas Carafano et al. (3) have a problem with the media’s exposure of the NSA surveillance system, it would seem that any program that is seen as legitimate by Americans (as this one was) would survive public scrutiny. However, there needs to be some care taken by the media to insure that exposure is done with care and does not unnecessarily hinder the governments ability to deal with the threat.
[14] Rosenzweig, 2 (fn1)


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