Balancing Liberty and Security
How ironic that the war on terrorism we've been waging since 9/11
-- a war meant to ensure our safety -- should itself inspire fear
in some Americans.
Yet cries of "Big Brother" materialize whenever we hear about new
government programs meant to enhance our security, such as
increased information sharing under the Patriot Act or the Total
Information Awareness program. Some critics have even suggested
that such measures could eventually lead to a totalitarian
Many won't go that far, but they admit they're concerned. When
Attorney General John Ashcroft testified before Congress in March,
Rep. Jose Serrano, D-N.Y., told him: "Some of the policies the
[Justice] department has proposed to combat terrorism are deeply
troubling, and I fear some officials are so intent on fighting
against terror that they forget what we are fighting for."
A healthy mistrust of government is commendable. Indeed, one could
argue that such skepticism has helped America remain a free nation
for well over two centuries.
But fears of a police state are overblown. We're merely witnessing
a recurring pattern in American history. Professor Geoffrey Stone
of the University of Chicago recently outlined some of this history
in an address to the Supreme Court Historical Society, and what he
said shows how the pendulum between liberty and security swings as
In 1798, the United States was in a state of undeclared war with
Napoleon's France. To combat pro-French political views, Congress
enacted the Alien and Sedition Acts to prohibit the publication of
"false, scandalous and malicious writings" against the
It was, in effect, an effort to suppress political criticism of
President John Adams, his policies and his administration. When
Thomas Jefferson replaced Adams as President, he pardoned all those
who were convicted under the Act, which is today widely regarded as
a stain on American liberty.
During the Civil War, President Lincoln suspended the writ of
habeas corpus eight times, and the military imprisoned as many as
38,000 civilians. In 1866, a year after the war ended, the Supreme
Court ruled Lincoln's acts unconstitutional. Today, they are
considered an excessive but necessary response to a wartime crisis.
Indeed, some believe that, had Lincoln not acted, anti-draft riots
might have ended the war with the United States divided.
During World War I, federal authorities acting under the Espionage
Act prosecuted more than 2,000 war opponents. Though the Supreme
Court initially upheld the law, over the next half-century it
overruled every one of its World War I decisions, repudiating the
excess of that wartime era.
Finally, and most notoriously, was the internment of
Japanese-Americans during World War II. Under an executive order
signed by President Franklin Roosevelt, more than 110,000 people of
Japanese descent were forced to leave their homes in California,
Washington, Oregon and Arizona. Most were detained in camps
scattered around the west, where they were penned up behind barbed
wire and watched over by armed guards. Years later, the government
offered an official apology and reparations to each of the
The historic path of the pendulum teaches useful lessons:
First, the American system is resilient. Significant events like
Sept. 11 alter the balance between liberty and security, but the
pendulum always returns to center as the threat diminishes.
Second, the arc of the pendulum's swing is not nearly as great as
it once was. For example, two Americans, Jose Padilla and Yasser
Hamdi, are being detained as part of the war on terror. But both
men have exercised their habeas right. That's a far cry from
Roosevelt's wholesale internment of an entire population group or
Lincoln's suspension of the writ. The watchful eye of the courts,
Congress, the press and the public insures this trend will
Third, history shows that we have been -- and at times should be
-- willing to adjust the balance between liberty and security in
times of crisis. We must, of course, be cautious. But not so
cautious that we're immediately prepared to accept apocalyptic
claims that American liberty is failing.
Rosenzweig is a senior legal research fellow in the Center
for Legal and Judicial Studies at The Heritage Foundation (www.heritage.org).