When the terrorists crashed hijacked planes into the World Trade Center, the Pentagon, and a field in Pennsylvania, they destroyed 3,000 innocent lives, buildings, our sense of security, and also, parts of the Bill of Rights. The terrorists utilized the open nature of our society to protect the planning and perpetration of their attack. Consequently, as at previous times of threat in American history such as the Civil War and World War II, the September 11 attack has forced us to face the problem of how to balance our security with our liberty. What portion, if any, of our liberties should we sacrifice to protect ourselves in the post-September 11 era?
During the Civil War, President Lincoln suspended the Constitutional guarantee of habeas corpus the right not to be incarcerated indefinitely and jailed suspected Confederate sympathizers. World War I brought about the persecution of German speaking Americans. During World War II, many of California’s Japanese Americans were held in internment camps. The Cold War saw the prosecution and blacklisting of those thought to be communists or communist sympathizers. Now, since September 11 and the Iraq War, American Muslims, anti-war protestors, and others opposed to government policies are being scrutinized and prosecuted.
The Patriot Act, proposed by the Bush Administration and passed by Congress in the immediate wake of the September 11 attacks, exemplifies the severe difficulty America faces in the attempt to balance liberty and security. The Act has a “sunset” provision. That is, it will be reviewed and revised in three years. Still, the act gives the government increased powers, among them: the authority to intercept communications that may be terrorism related, access to certain records, and mandatory detention of those suspected to be terrorists. And, as The New York Times reported on 9 September 2003, the administration “has begun using the law with increasing frequency in many criminal investigations that have little or no connection to terrorism.”
A new administration proposal, labeled Patriot Act II, has not yet passed. Government officials, notably Attorney General John Ashcroft, have been traveling the country to build support for the measure. The new law would enhance the powers enumerated in the original Patriot Act. Patriot Act II, The New York Times (Editorial 2 September 2003) notes, “would give the government broad powers to seize documents, and force testimony without a court order, expand the use of the death penalty, and make it harder to be released on bail.”
The Times further argues that “The drive to roll back civil liberties is a threat to freedom . . . The administration would better use its energy on more effective law enforcement strategies to keep us safe.” Indeed, we want to be safe, but also free. When President Lincoln suspended habeas corpus in the fight to save and safeguard the Union, he asked those who labeled him a tyrant for this act: “(A)re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”
There is no doubt that since September 11 we have been at war. This is not a war fought over great swaths of territory, or for strategic objectives. It is not like the war in Iraq. It is a new type of war. It is a war, we now see, not only against American interests, troops, embassies, and people abroad, but a war in which a horrific attack emanated from our territory, against our territory. Those of us who dearly value our liberty, and want only to go about our daily lives in safety, are conflicted. Most of us desire to follow the “Golden Rule” of “Do unto others as you would have them do unto you”, or at least the dictum of “live and let live”. Most Americans believe in, at the least, tolerance of others tolerance of Muslims, included.
Americans are torn between the conflicting demands of liberty and security. How do we react? The federal and state governments suggest that we be vigilant, watch out for suspicious activity, and they even provide tip lines so that we might anonymously report potential suspects. Last year, on September 11th’s first anniversary, a woman at a diner in Georgia heard, she thought, threatening comments from some young Muslim men who were sitting near her. They left, she called the police, and there was a full-scale manhunt through out the southeast. The highway they were on was shut down, and the young men were finally stopped in Florida. They were detained and questioned at length. They were not terrorists, but medical students on their way to school. What they said about September 11th, or if they said anything threatening, as the accuser claimed, remains unclear a year later.
The question is whether the woman who sounded the alert did the right thing. Did she instigate a violation of the young men’s civil liberties? Was she correct to assume that her perception of a threat trumped those liberties? Was she influenced by the context of the date, and the government call to be wary? Both last year and this year, students in my politics classes, like many Americans, were hard put to answer these questions. Only a few students saw the question as simple. “Yes,” said one young woman, “she was right. We are in danger, so safety first.” “No,” argued another, “she violated their rights, she’s prejudiced, bigoted against Muslims.” But most, especially when I asked them to put themselves in that woman’s position, were uncertain exactly how they would react in a similar situation. Their sense of tolerance and fair play pulls them in one direction, their memories of September 11th in another.
One student who strongly opposed the woman’s action looked at the incident from a personal perspective. Her involvement in anti-Iraq war protests, and her friendship with a protester who is willing to publish anti-war tracts, provide an introduction to the problems of free speech the Patriot Act raises. Her friend, after being extensively questioned by the authorities for reasons that remain unclear, apparently had his right to travel circumscribed. Some students are taken aback by their classmate’s passion as she relates the story. They are well aware that the issue is real, and not just abstract, constitutional theorizing. Others continue to hold to their same view, namely the need for security over a broad view of liberty.
I wish that I could say something brilliant and professorial to help, to “resolve” this quandary. But this problem only seems to force one to choose from among unpalatable options. I see the cost when I drive to New York City and cross the Verrazano Narrows Bridge. When I first saw the “Checkpoint Ahead” sign earlier this year, it seemed to loom out at me, gigantic and dangerous. After several trips I am still not used to it. One drives slowly by, observed by armed, flak-jacketed police beside military style trucks. A truck gets pulled over. It is, I suppose, a delivery truck, unmarked and somewhat beat up. I don’t see the driver. Does he, or she, look “middle eastern? Swarthy? Can they pull over anyone they want? Anyone who looks “suspicious? I don’t think that I look suspicious but am I safe?
It is June of 1988, and I’m at the Austrian-Hungarian border. This checkpoint has guard towers, guards with guns checking passports, barbed wire all yield a feeling of helplessness. I know that to those guards I look suspicious. I must, considering the way they closely examine my passport. Beyond the grim faced border guards and the barbed wire is the communist nation of Hungary. It seems inconceivable that within the months to come, this checkpoint, and all those along the “Iron Curtain” between the countries of east and west Europe, will soon be swept away. But now, as our group of Fulbright Professors travels all around this stunningly beautiful country, from the capitol Budapest, to the placid waters of Lake Balaton, to the beautiful vistas of the thickly forested Bakony Mountains, we feel uneasy.
In 1988, Hungary is “freer” than other communist nations, one can even get The International Herald Tribune here. But as we travel through Hungary, we keep seeing two women and two men the same four people wherever we go. Whether we’re resting by the lake, or hiking in the mountains, they always seem to be around. A couple of my colleagues scoff at this “James Bond” type assumption. Are we being paranoid? Are we imagining things? I don’t know, and I never find out. But, in any society where people are watching, outsiders soon adopt the careful pose of those who live with this reality.
On this same trip we go to Zagreb, then in Yugoslavia, now the capitol of Croatia. The country will soon be torn by horrific wars. Now, Croatians speak with disdain for their communist rulers, more than their long-standing hatred for the Serbians, their fellow Yugoslavs. In the city’s main square, surrounded by quaint shops and clanging trams, our questions to our guide turn the tour into a political discussion. Surprisingly, we soon draw a crowd. Many Croatians speak English, and grasp the chance to speak with us about politics and their disenchantment with their government. It is a gorgeous summer day. The sun glints off the windows of passing trams. But clouds gather with the appearance of several men who begin to circulate through the crowd, bumping some discussants. There may be safety in numbers, but, slowly, the crowd disperses. Now, except for a few elderly shoppers, we are alone in the sun drenched city square. We continue our tour.
My last trip to a communist controlled country is in the summer of 1990. I am in West Berlin, deep in the heart of East Germany, or to use its proper title, The German Democratic Republic. The Berlin Wall is open but not down. It stretches away into the distance as I stand near the famous Brandenburg Gate on the border of the divided city. The Wall remains forbidding and still looks dangerous, with its barbed wire and the watchtowers, from which people trying to escape across the border were shot. The grim faced border guard minutely scrutinizes my passport. The fact that he no doubt realizes that his power is on the wane may explain his particularly surly behavior.
At this time in Germany freedom has come, or at least, it is on the way. Still, as I cross from West to East Berlin a pall seems to descend on the city. I have never been more aware of the stark difference between liberty and oppression, separated by only a few meters. The East is empty, everyone has gone to the West, or so it seems. Beyond the Wall, sitting in the middle of a vast expanse of empty, weed covered ground, is the abject wreck of the Reichstag, the German Parliament building. It looks like the hulk of some great abandoned ship, a forlorn reminder of World War II horrors and the Cold War’s icy stalemate, beached among the weeds.
Today, in the new millennium, the Reichstag is reborn. Here sits the parliament of a free country, in the united capitol of Berlin no more East or West in a Europe no longer split by walls, wire, and checkpoints. The brilliant new, clear dome atop the rebuilt and refurbished Reichstag epitomizes the openness and freedom of the new Germany. Yet, in the new Germany, Mohammed Atta did some of the planning for the September 11 attacks. Germany has no love of terrorists, and the police would have dearly loved to have caught Atta long before 9/11, but new democracies, as old ones, must now learn to balance freedom with security. The “old” Germany was secure but not free. Germany today is free, but less secure.
I return to Budapest in a free Hungary in June 2002. I receive a warning and hear a lament. First, do not go out alone late at night, as street crime is on the rise. Second, some Hungarians express concern that the now open borders provide access to terrorists moving north into Europe. Thus, Hungarians discover the democratic dilemma, the need to balance security with liberty.
I think about those other checkpoints that I have gone through in East Europe as I pass, unobstructed, through the one at the Verrazano Bridge at the edge of New York. It is unsettling. Is it a precursor of things to come, perhaps other things ushered in on more Patriot Acts? I accelerate across the bridge. At the center of the bridge’s roadway I look out to the left, across the harbor, towards the empty place in Manhattan’s skyline where the World Trade Center stood. This new checkpoint that I have just passed through, like the others at the bridges and tunnels heading into New York city, suddenly seems strangely comforting, and not threatening.
Americans value their liberty, but they also want to be safe so that they can enjoy those freedoms. I can only suggest to my students that they be wary of those on the Right and the Left of the American political spectrum. The former seem certain that Americans can safely surrender a portion of liberty to guarantee our safety. The latter seem similarly certain that liberty must remain sacrosanct whatever the threat to our security.
We must, as Lincoln did during the Civil War, work our way through this demanding time. Although, it will, no doubt, stretch out, far into the future. As professor Daniel Farber notes in his recent book, Lincoln’s Constitution (the University of Chicago Press, 2003), “as recent events have shown, we can never take for granted the nation’s power to maintain its security while upholding the rule of law.” The question, then, remains for us the one originally posed by Lincoln: “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”
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