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Order vs. Freedom in an Age of Terror


Last week, President Bush signed into law an extension of the U.S.A. Patriot Act, which gives investigators broader powers to seize library and medical records as well as to conduct roving wiretaps in the war on terrorism.

Since the September 11th al-Qaida attacks against the United States, civil libertarians on both the left and the right have charged that basic freedoms in America could be at risk in the war on terror. But law enforcement officials and many analysts argue that civil liberties can be protected only through increased surveillance and security measures.

The conflict between civil liberties and national security is an age-old dilemma. More than 2,000 years ago, the Roman statesman Cicero said, "In times of war, the laws are silent." But are they?

Both order and freedom in society are important. But does one take precedence over the other, particularly during times of crisis or war? And who decides?

Jeffrey Rosen, constitutional law professor at The George Washington University, is author of the book: The Naked Crowd -- Reclaiming Security and Freedom in an Anxious Age.

"I'm concerned that because of fear, people may make bad choices. In other words, they may trade away liberty without receiving in return a lot of security. And much of the concern after September 11 has been focused on that fact. Consider the laws that we and Europe have adopted in the face of September 11th. Often, these laws increase the surveillance powers of government -- not only when it comes to terrorism, but also when it comes to low-level crimes. So the government can tap the Internet or engage in new, high-tech surveillance. And many of the criminals it is catching using these new technologies are not terrorists at all, but people who have overstayed their visas or who are guilty of low-level violations. I think that's an example of a bad balance," says Rosen.

Because there's pressure on politicians to be proactive in the war on terrorism, Professor Rosen says legislation meant to promote a nation's security may ultimately threaten individual freedoms and that new security technologies can take on a life of their own.

Cameras installed in public places in Britain in the 1990s, for example, were intended to combat terrorism. Now they're also being used to issue traffic tickets. So where is the balance between order and freedom?

Civil Liberties Sacrifices

At various times throughout its history, the United States has been willing to endure challenges to its civil liberties for the sake of its security.

Many analysts point to World War II -- soon after the bombing of Pearl Harbor -- when President Franklin Roosevelt authorized the removal of some 110,000 Japanese and Japanese-Americans from the West coast to detention centers across the United States.

Douglas Kmiec teaches constitutional law at Pepperdine University in Malibu, California. "But I think that as one of the Justices said then, 'You have to judge these circumstances in their context and at their time, and not 20 years removed,'" says Kmiec. "Twenty years removed, the Japanese exclusion cases were properly condemned as being excessive -- involving not just curfews, involving not just limitations from particular geographic areas, but wholesale detainment of people who were unquestionably loyal to the United States. The main point is that we are not seeing anything proposed or even contemplated of the same kind."

Perhaps the most important factor in preserving the balance between order and freedom in American society is our system of "checks and balances" among the three branches of government -- the executive, the legislative and the judiciary.

According to legal scholar Jeffrey Rosen, these "checks and balances" highlight the strengths and weaknesses of America's constitutional system. "On the good side," says Rosen, "I would hope that people around the world would appreciate the benefits of our system of checks and balances which has protected our liberties by blocking the most extreme and thoughtless proposals for surveillance. And this built-in inefficiency ensures that the Executive Branch can't do whatever it wants, that there has to be a cooling off period when the legislature and the courts have a more sober second look. This is America's greatest contribution to constitutional structure. I hope also, though, that the world might note some of our excesses and that fact that in America -- where public opinion is the only form of authority -- the public is not always especially effective in evaluating complicated choices between liberty and security."

A Delicate Balance

Most scholars agree that the ultimate question the public needs to ask is whether a particular suspension of civil liberties for the sake of security is proportionate to the offense that it's trying to stop. Are there less restrictive means to achieve the same degree of order? And how long should such measures last?

Political scientist Angelo Codevilla of Boston University says order and freedom in any society must go hand-in-hand, particularly in the United States.

"There is something wrong with the straight forward equation of order versus freedom. For example, take [Nicolo] Machiavelli. Here's a man who was not civil libertarian, but who was very clear in pointing out that one does not get order simply by imposing police measures. Safety -- order -- comes from the citizens themselves. [Alexis] de Tocqueville also pointed out that America was the least policed of states and yet the most orderly. So we really should not look at it as a trade-off between more policing and, therefore presumably more order, and freedom," says Codevilla.

Most analysts agree that here in the United States, one of the basic functions of government is to maintain order so that we can maximize freedoms. To that end, they say, order and freedom are allies and that one cannot be enjoyed without the other.

This story was first broadcast on the English news program,VOA News Now. For other Focus reports click here.

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