Americans hear daily about new measures
that are meant to enhance their security but are criticized as
endangering their civil liberties. Most take it for granted that
the events of September 11 require that the government institute
new homeland protection measures, yet also believe that some
proposals are clearly excessive. The vital question from both a
legal and a public policy perspective is what criteria should be
applied to sort out what is needed and what is "too much." Can one,
for example, in this age of terrorism still use the "reasonable
person" criterion in assessing intrusions into civil liberties, or
is that time-honored construct no longer sensible in today's
Given that policymakers inevitably will
face this question in a variety of contexts regarding many
different proposals, it is important to develop a methodology for
assessing issues of civil liberty and public safety--some idea, at
least, of what are the right questions to ask. One can then derive
guidelines to govern the development and implementation of any new
anti-terrorism system. These overarching principles should animate
the consideration of any new program to combat global terror.
American principles require that any new counterterrorism
technology should be developed only within the following
- No fundamental liberty guaranteed by the
Constitution can be breached or infringed upon.
- Any increased intrusion on American
privacy interests must be justified through an understanding of the
particular nature, significance, and severity of the threat being
addressed by the program. The less significant the threat, the less
justified the intrusion.
- Any new intrusion must be justified by a
demonstration of its effectiveness in diminishing the threat. If
the new system works poorly by, for example, creating a large
number of false positives, it is suspect. Conversely, if there is a
close "fit" between the technology and the threat (that is, for
example, if it is accurate and useful in predicting or thwarting
terror), the technology should be more willingly embraced.
- The full extent and nature of the
intrusion worked by the system must be understood and appropriately
limited. Not all intrusions are justified simply because they are
effective. Strip searches at airports would prevent people from
boarding planes with weapons, but at too high a cost.
- Whatever the justification for the
intrusion, if there are less intrusive means of achieving the same
end at a reasonably comparable cost, the less intrusive means ought
to be preferred. There is no reason to erode Americans' privacy
when equivalent results can be achieved without doing so.
- Any new system developed and implemented
must be designed to be tolerable in the long term. The war against
terror, uniquely, is one with no immediately foreseeable end. Thus,
excessive intrusions may not be justified as emergency measures
that will lapse upon the termination of hostilities. Policymakers
must be restrained in their actions; Americans might have to live
with their consequences for a long time.
these general principles can be derived certain other more concrete
conclusions regarding the development and construction of any new
- No new system should alter or contravene
existing legal restrictions on the government's ability to access
data about private individuals. Any new system should mirror and
implement existing legal limitations on domestic or foreign
activity, depending upon its sphere of operation.
- Similarly, no new system should alter or
contravene existing operational system limitations. Development of
new technology is not a basis for authorizing new government powers
or new government capabilities. Any such expansion should be
- No new system that materially affects
citizens' privacy should be developed without specific
authorization by the American people's representatives in Congress
and without provisions for their oversight of the operation of the
- Any new system should be, to the maximum
extent practical, tamper-proof. To the extent the prevention of
abuse is impossible, any new system should have built-in safeguards
to ensure that abuse is both evident and traceable.
- Similarly, any new system should, to the
maximum extent practical, be developed in a manner that
incorporates improvements in the protection of American civil
- Finally, no new system should be
implemented without the full panoply of protections against its
abuse. As James Madison told the Virginia ratifying convention,
"There are more instances of the abridgment of the freedom of the
people by gradual and silent encroachments of those in power than
by violent and sudden usurpations."
war on terrorism changes the stakes in fundamental ways. No longer
is the United States fighting against adversaries an ocean
away--the war has come home to this continent. Yet the war against
terrorism is likely to be a long one, and Americans cannot tolerate
the long-term substantial degradation of their civil liberties as
the price of public safety.
see this conundrum as irresolvable: Security must be balanced
against civil liberty, and any improvement in one results in a
diminution of the other. This is the wrong perspective: America is
not limited to a zero-sum game. There are effective ways to limit
the ability of the government to intrude into Americans' lives
while increasing security. America can and must adhere to
fundamental and firm principles of limited government, and it can
do so while also answering the terrorist threat. The challenge is
not an easy one, but few worthwhile things are.
Paul Rosenzweig is Senior
Legal Research Fellow in the Center for Legal and Judicial Studies
at The Heritage Foundation and Adjunct Professor of Law at George