an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[This essay was written for the first anniversary of the 9/11 attacks, and published in the New Orleans Times-Picayune on September 11, 2002. Given the story just blogged about the government's misuse of the supoena power to crush First Amendment rights, it seems entirely appropriate to republish the essay now]
* * * * * * *
Whenever our country faces new threats, changes in constitutional structure soon follow. That was true during both World War II and the Cold War. But these changes do not require us to give up our civil liberties. Quite the contrary: Although World War II began with the internment of Japanese-Americans, our experience of fighting a racist Nazi regime eventually led President Harry S. Truman to desegregate the Armed Forces. The Cold War began with McCarthyite hysteria; yet the need to distinguish ourselves from communist dictatorships eventually led to Brown v. Board of Education and a great flowering of civil liberties. Repeatedly Americans have discovered that we respond best to new dangers when we remain true to our deepest values.
Today many argue that the War on Terrorism requires Americans to surrender their civil rights and restructure our constitutional system to give the President ever greater power. But the lesson of history is precisely the opposite. Poised on the brink of war, with an administration altogether too sure of itself, we need democratic accountability and constitutional safeguards more than ever.
Well before September 11th the Bush Administration sought to operate without interference or consultation and to disclose as little information as possible. Its refusal to reveal who met with Vice President Dick Cheney when the administration was formulating its energy policies is only the most well-known example. The administration's approach to the press has become increasingly Orwellian, cloaked in euphemisms and newspeak, routinely describing its positions as their opposites and blatantly denying contradictions and shifts in government policy. Secrecy has been its watchword; bullying its strategy of choice.
The events of September 11th only confirmed the administration's worst instincts about how to govern the nation. Domestically, it rounded up hundreds of immigrants while refusing to release their names to the public. It announced the creation of secret military tribunals with no right of appeal to the judiciary. It detained American citizens in military prisons without the right to consult an attorney or seek judicial review. It ordered a wholesale closure of immigration hearings to the public, barring not only the press but family members. It repeatedly sought to make as much new law as possible without consulting Congress, and it repeatedly insisted before the courts that it had unreviewable power to do whatever it wanted to prosecute the War on Terrorism. In foreign policy it has announced its determination to attack another country preemptively in violation of international law, whether or not Congress gives authorization, and whether or not our allies support us. Only after weeks of protest from congressmen and former government officials did the President grudgingly announce that he would seek Congressional approval for an invasion of Iraq. Even so, administration officials have continued to promote the idea that the United States should wield its military power early, often and unilaterally to secure its interests around the world.
The Bush Administration's policies are not simply unwise or undiplomatic. They also undermine constitutional government. Open government is crucial to a free society; it keeps government officials honest and deters them from making bad decisions and covering up their mistakes. Democracy presumes that government officials are accountable to the people, but accountability becomes impossible if the people can't find out what the government is doing in their name. Separation of powers lets the different branches of government check each other's errors and enthusiasms, but it cannot work if the executive branch insists that it will do whatever it wants anyway. The rule of law prevents government officials from arbitrary action, but it means nothing if the administration can flout international agreements, round up citizens and refuse them access to the courts.
The War on Terrorism is a war to defend our country's way of life. That way of life includes a commitment to constitutional checks and balances, individual liberty, democratic accountability, open government and the rule of law. It would be ironic indeed if in our zeal to preserve our way of life we destroyed it. Posted
by JB [link]
I'm glad you see things this way, but what are we to make when the editor of USN&WR writes things like this:
"The jihadists are not just another protest group. They recognize no moral and legal standards-and we are fighting them with one hand behind our backs: The sad fact is that over the years our government has not earned enough trust to allow for reasonable compromises by which the intelligence agencies could get the bad guys without violating the privacy of the good guys.
What has been done to date-border controls, intensity of interrogation, even airport searches-has not diminished most citizens' "feel of freedom." But if we were to experience a major attack that could have been thwarted by effective countermeasures, the public outcry for action would make the present restrictions seem a mere bagatelle. So the greatest threat to civil liberties today is not preventive measures, but failing to take them."
Mort Zuckerman, Editor USN&WR, 12/06
I'm truly stunned to see the number of people willing to trade liberty for security, but this guy seems to be saying that because of the government's incompetency we need to surrender more liberty. It's another way of saying, "we don't want the smoking gun to be a mushroom cloud" but it's scarier this time, not for its substance, but because it's coming from the so-called "liberal" media who have been granted Constitutional rights to police against governmental overreaching.
What do we do when only the blogs and the reporters recognize the threats inherent in giving up our rights, but the editors don't see this as any sort of a problem?