The conflict between civil liberties and national security is an age-old dilemma. More than 2000 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, Law Professor at George Washington University and author of the forthcoming book The Naked Crowd -- Liberty and Security in an Age of Terror says he is concerned that fear will cause people to make bad choices. "In other words, they may trade away liberty without receiving in return a lot of security,” he says. “And much of the concern after September 11 has been focused on that fact. Consider the laws that the U.S. and Europe have adopted in the face of September 11. 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."
Because there's pressure on politicians to be proactive in the war on terrorism, Professor Rosen says legislation meant to ensure 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?
Here in the United States, legal theorists point out that interpreting the U.S. Constitution in an attempt to deal with these issues has been an evolving process. Bruce Fein served in the Justice Department under former President Ronald Reagan and is now an attorney specializing in constitution and international law. “The Fourth Amendment is an echo of the kind of dilemma we're talking about,” he says. “It says that the government cannot engage in 'unreasonable' searches and seizures. And ordinarily, they must have a warrant based on probable cause to suspect crime before they can undertake searches or surveillance. But again, the keystone to the Fourth Amendment is 'unreasonable.' And that term derives its strength and substance based on the relative authenticity of the threat that's anticipated and what's reasonably commensurate with that threat in surveiling possible suspects."
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 I and immediately thereafter when anarchists and communists were arrested, and immigrants were sometimes deported for expressing their political views. During World War II, after the bombing of Pearl Harbor, President Franklin Roosevelt authorized the removal of some 110,000 Japanese and Japanese-Americans from the West coast to detention centers across the country.
"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 Douglas Kmiec, Dean of the Catholic University of America School of Law in Washington. “Twenty years removed, the Japanese exclusion cases are 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,” he says. “The main point is that we are not seeing anything proposed or even contemplated of the same kind now. The people who are being detained presently are not being detained because they are of a given ethnicity or because they are of a given race. They're being detained because they've been arrested on identity charges or immigration charges or for giving material assistance to a terrorist organization based upon hard evidence."
There is near universal agreement among scholars that America's record on civil liberties has only improved over time. The USA Patriot Act, which was passed in the wake of the September 11 attacks and is intended to combat terrorism here in the United States, calls for increased surveillance authority for law enforcement agencies. But the statute says those powers cannot be used against American citizens who are engaged solely in activities that are protected by the First Amendment to the Constitution, which ensures freedom of speech, press and association.
Analysts say that 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.
George Washington University Law Professor Jeffrey Rosen, says these ‘checks and balances’ highlight the strengths and weaknesses of America's constitutional system.
"I think that the separation of powers is one of the crucial protectors that Americans have in the difficult days ahead,” he says. "On the good side, 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."
Constitutional attorney, Bruce Fein says “democracy and freedom are not a cruise control device.” “We always have to be seeking a balance. And balance will be maintained only if we're looking on both sides of the possibility of abuse. Human nature, being what it is, both sides are going to be pushing to win and we don't want either side to win. We still want to have a sensible balance. And that means Congress has to play a vigorous oversight role. That means courts have to give tough review of the constitutionality of the activities of the Executive Branch that seem to go beyond the needs of the emergency, and the President himself has to try to exercise self-restraint, not pushing things beyond what is reasonably prudent in light of the current crisis of terrorism, Iraq and things that could happen in the aftermath.”
Analysts say the ultimate questions 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,” she says. For example, [take the political theorist 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 and order comes from the citizens themselves. [The political theorist and commentator on American society 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."
Most analysts agree that here in the United States, one of the basic functions of government is to maintain order under law so that we can maximize our freedoms. To that end, they say, order and freedom are allies and that one cannot be enjoyed without the other.