The Bush Administration's anti-terrorist
proposal has been the only issue since the terrorist attacks on
September 11 to spark serious disagreement in Congress. Some fear
that adopting the Administration's proposed new law enforcement
measures to increase security would endanger civil liberties.
This is a necessary debate; however, it is also one that could
easily be misunderstood. Before the debate endangers the unity
needed to fight the war on terrorism, it is appropriate for
policymakers to stop and think more carefully about the
relationship between liberty and security. Above all, care must be
taken to avoid artificially polarizing the discussion into two
hostile camps-one favoring security and the other favoring civil
This can be accomplished in two ways. First, policymakers must
distinguish between constitutional liberties on the one hand, and
mere privileges and conveniences on the other. Second, they must
understand that liberty depends on security and that freedom in the
long run depends on eliminating the threat of terrorism as soon as
Indeed, policymakers must do everything in
their power to preserve the basic liberties protected by the U.S.
Constitution, such as the due process of law (including the need to
show probable cause and judicial review for issuing warrants and
the right to a hearing); the right to be free of unreasonable
search and seizures; the right of free speech and religion; and the
right to assembly. While it may be permissible to suspend some
rights temporarily in a state of emergency-as in a formal
declaration of war by Congress-so far this has not been done.
However committed Americans must be to civil liberties, they do
not have a constitutional right to complete privacy if it
endangers the lives of others. Investigators should not be denied
access to potentially critical information gained overseas by
foreign intelligence sources that could save lives, merely because
the methods by which it was obtained do not conform to the U.S.
Constitution. Nor should sensitive intelligence information on
terrorists be compromised by disclosure in open court proceedings.
There must be a reasonable balance between privacy and
The Administration's proposed anti-terrorism package for the
most part draws these distinctions properly. Specifically, it
Update wiretapping laws to keep up with changing
technologies concerning cell phones, voice mail, and e-mail
Permit the sharing of information between law enforcement
agencies and intelligence services;
Give courts the authority to review terrorism cases
without compromising classified information; and
Enable the government to detain alien individuals who are
found to pose a threat to national security until they are actually
removed or until the Attorney General determines the person no
longer poses a threat. These people would be detained while charges
(such as violation of immigration laws) are pending against them.
Once those charges were resolved in favor of the individual, he or
she would go free.
Reasonable people may disagree with some of these measures and
seek improvements. For example, it seems that some time limitations
could be established on the detention of foreigners suspected of
terrorist ties. Moreover, some provisions could be modified to
ensure that information collected on U.S. citizens is not leaked or
shared with someone in or out of government who has no need or
right to see it. Finally, every effort should be made to ensure
that changes made in criminal law are focused as much as possible
on the threat of terrorism and could not be abused or used to
broaden the investigative powers of the government for
non-terrorist-related cases. The new legal tools, developed as
emergency measures to fight terrorism, should not necessarily apply
to routine criminal investigations. Information collected on people
in terrorist investigations should not be used in criminal cases
unrelated to terrorism-in tax evasion cases, for example.
STOP TERRORISM TO PROTECT CIVIL LIBERTIES
The attacks of September 11 inevitably will effect changes in some
aspects of criminal law. Foreign groups are attacking Americans
within the United States, which cannot help but blur the previously
bright lines of distinction between national security and criminal
law. Compromises will have to be made. People flying on airplanes
will have to be subjected to more intrusive questioning, and while
any information an airline gathers should not be used for purposes
other than security, people must realize that flying is a voluntary
act. Some amount of privacy will have to be sacrificed for the sake
of the common safety of the crew and passengers.
If the Administration's anti-terrorism proposal is adopted by
Congress and enacted into law, there will be cases in which notice
of a warrant on suspected terrorists may have to be delayed in
order to avoid tipping off a suspect. And there will be times when
aliens suspected of terrorism will be detained by rules and legal
procedures that are more restrictive. All of these new provisions
are reasonable and necessary. None of them represents an
infringement on the constitutional rights of American citizens.
The nation must realize that the nature of the terrorist threat
has changed and that some laws must change to deal with this new
threat. The distinction between domestic and international
terrorism-indeed, even between domestic and foreign threats-is now
artificial. The foreign threat is here at home, and the laws that
normally protect citizens from criminal activity are not sufficient
to deal with the complexities of a threat that is both foreign and
domestic. Facing a threat as serious as this, civil liberties are
in greater danger from a "business as usual" attitude than they are
from the minor changes proposed in the Administration's
THE NEED TO ACT
However moderate the Administration's proposal may be, the
future could be very different if terrorism is not stopped. The
longer Americans remain insecure and vulnerable to terrorist
attacks, the greater the likelihood that their constitutional
liberties will be eroded in the long run. Surely, the nation needs
a balanced approach to fighting terrorism at home, but the
government must be able to take whatever measures are necessary and
consistent with constitutional liberties to quickly re-establish an
environment of security.
Until the federal government takes measures that re-establish
Americans' confidence in air travel, the economy will be hampered.
Until the government makes Americans feel safe and secure, Muslim
Americans may be wrongly attacked. Until the government
demonstrates that terrorist cells have been eradicated inside the
United States, many Americans will be demanding the kind of
excessive law enforcement measures that civil libertarians decry.
And until the government takes decisive action against terrorist
networks and states abroad, Americans will not feel confident that
the threat has been removed from their shores.
Imagine what would happen if the war against terrorism fails.
Repeated attacks would create panic, and a terrible backlash
against civil liberties would ensue. As the casualty toll grew, the
calls for draconian measures would make the rather modest
provisions in the Administration's anti-terrorist package pale by
comparison. A long twilight struggle against terrorism that proves
ineffective would chip away at the Constitution in ways Americans
can scarcely imagine. Over time, fear and loathing-particularly if
America were victim to an attack from weapons of mass destruction
that killed millions-would create a tremendous demand from the
American people to restrict liberties in the name of security.
That is why the United States must act quickly and decisively
now to destroy terrorism at home and abroad. While the President is
correct in saying that the anti-terrorist campaign may take many
years, the war on terrorism should not become a permanent feature
of American life. The goal should be to destroy terrorism as
quickly as possible. The United States needs to be patient, to be
sure, but not too patient, especially as far as foreign operations
against terrorism are concerned. It must be forceful and determined
in the short run in order to protect Americans' constitutional
liberties in the long run.
This means that the foreign campaign must be as broad as
necessary to ensure that the threat of terrorism is not merely
contained, but defeated. It means going after the regimes that
harbor terrorists. If the international effort merely strikes at
one man, one group, or even one network of terrorists without
changing or fundamentally altering the pro-terrorist policies of
the regimes that protect them, another terrorist leader, group, or
network will arise in their place. The more forceful and effective
the foreign anti-terrorist campaign, the less pressure there will
be against civil liberties at home.
Americans should not forget that there is no more basic civil
liberty than the right not to be blown to bits. Civil governments
are formed not only to protect liberties, but to protect the lives
of their citizens-from each other and from foreign attacks. The
Preamble to the U.S. Constitution states that among the purposes of
the federal government are to "insure domestic Tranquility, provide
for the common defense, [and] promote the general Welfare" of the
American people. There would be no "Blessings of Liberty"-another
constitutional goal-if it were not for the order and security
provided by the federal government.
The changes in law contained in the Administration's
anti-terrorist proposal would be a small price to pay to enhance
the nation's capabilities to apprehend terrorists. Whatever limited
sacrifice in privacy and privileges there may be in these proposed
measures is small in comparison to the long-term risks posed to
civil liberties by terrorism.
John Adams said in 1765 that
Liberty must at all hazards be supported. We have a right to it,
derived from our Maker. But if we had not, our fathers have earned
and bought it for us, at the expense of their ease, their estates,
their pleasure, and their blood.
While American troops may be asked to pay for liberty in blood,
most Americans will be asked merely to give up a few privileges and
conveniences. Surely, this is a sacrifice they can afford to
Americans will never be free so long as terrorists are
threatening their homeland. It would be ironic indeed if an
inordinate fear of losing some rights were sufficient to deny the
nation the tools it needs to stop the very thing that would doom
the Constitution-the scourge of terrorism. Americans cannot be free
unless they are secure any more than they, in the long run, can be
secure unless they are free. The United States must stop terrorism
in America if it is to preserve freedom.
Holmes, Ph.D., is Vice President of Foreign and Defense
Policy Studies and Director of the Kathryn and Shelby Cullom Davis
Institute for International Studies at The Heritage