Can we be secure and free?

Public Interest, Spring, 2003 by Thomas F. Powers

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty or safety.

--Benjamin Franklin

Political liberty consists in security or, at least, in the opinion one has of one's security.

--Montesquieu

HAS the war on terror breathed new life into the forces of authoritarianism in America? That certainly is the suggestion of many in today's debate over civil liberties. But the current contours of the debate, in which defenders of liberty oppose those arguing in the name of security, are fundamentally misleading. As it now stands, the controversy is deeply confused and exaggerates the disagreement between parties of good will on both sides. The debate has also set in motion an unnecessary spiral of mistrust that may now be beyond our power to escape. But it may still be possible to clean up some of the confusion that prevails on all sides and sort out what is really at issue.

The first, and thus far the most significant, domestic opposition to government policy in the war on terror has come from civil libertarians. The American Civil Liberties Union and other civil liberties interest groups have mounted widely publicized legal challenges to a number of measures enacted in the wake of the attacks of September 11. The National Lawyer's Guild and the Lawyers Committee for Human Rights, representing lawyers from across the nation, have launched protest efforts. Three hundred law professors signed a widely noticed petition opposing the administration's proposed use of military tribunals. More than 40 cities, towns, and counties (including Denver, Detroit, and San Francisco) have passed resolutions calling for resistance to, and the repeal of, the USA PATRIOT Act (declaring their environs "civil liberties safe zones"). Especially because we live in the wake of a period of ambitious expansions of freedom of speech, civil rights, and due process protections, any claim that our civil liber ties are being curtailed or violated cannot but be troubling to this generation of Americans.

But the arguments in response to the concerns of civil libertarians are also powerful. The government's duty in a time of uncertainty and extreme danger, such as the United States now faces, must be to conduct a thorough investigation of the harms done and to minimize potential future threats. After September 11, it is impossible to deny the very real possibility that a terrorist could detonate a nuclear bomb in an American city. Under such circumstances, anything but the most vigorous security policy (foreign and domestic) would be inexcusable.

In the eyes of civil libertarians, the attitude of the government seems to reflect an exclusive concern with security, straining the limits of liberty and leaving it to the courts (and civil libertarian activists) to push the administration back across the line. While professing concern for civil liberties, the Bush administration has not mounted any significant public relations effort to dispel such worries, preferring instead to underscore the necessities of security. By way of contrast, the administration's efforts to reassure Arab and Muslim Americans that their civil rights are secure has been much more vigorous and visible.

Anatomy of the debate

We seem then to have settled into a debate between the advocates of liberty on the one hand and the defenders of security on the other. But to begin by assuming a fundamental conflict between liberty and security is to misunderstand the essential logic of liberal politics. In a liberal republic, liberty presupposes security; the point of security is liberty. Liberty and security are, as Assistant Attorney General Viet D. Dinh has put it, "mutually reinforcing goods." Dividing these concerns is not only misleading but has the effect of poisoning public deliberation. In its most extreme form, the debate appears to pit the defenders of liberalism against hostile authoritarian elements that would overthrow it. But this is a very unhelpful exaggeration. The party of security in the current debate is not composed of "authoritarians" who see the war as an opportunity to unchain their pathological illiberal demons. We are all liberals here.

Yet all of us--whether we take the side of security or liberty--are perhaps confused liberals. To see where we stand and what is at stake, we need to disentangle the many strands of argument and layers of history that contribute to our current situation. Since the government policies at issue are as varied and complex as the civil liberties objections to them, I will begin by enumerating the areas of dispute and the actions taken by the administration, Congress, and the courts. I will then bring into focus what is novel and distinctive about this debate, namely that the current war effort (which necessarily emphasizes policing as much as military force) has run headlong into a heightened commitment in American politics to procedural protections of the individual in the courtroom and in dealings with the police. This due process "revolution," I will argue, has produced a new understanding of individual liberty, one which has greatly influenced today's debate. But, perhaps just as important, our public debate i s also energized and directed to an important degree by partisan political considerations, and has become polarized along more or less predictable (if, as I will argue, ultimately arbitrary) party lines, tapping into a legacy of the politicization of civil liberties dating back to the Cold War, Vietnam, and the turmoil of the 1960s.