Chapter 4: Does the Threat of Terrorism Justify Curtailment of Civil Liberties?
Chapter 4 Preface
In the first few weeks after the September 11, 2001, terrorist attacks on America, a dominant view in America was that some restrictions on civil liberties would be necessary to help prevent future terrorist attacks. For example, law enforcement authorities might need greater freedom to search and detain suspicious individuals. In discussing the effect of these security measures on civil liberties, the metaphor of a balancing act soon emerged. For example, columnist Murray B. Light of the Buffalo News wrote, “The nation needs to carefully balance its security concerns with its heritage of civil rights for all.”
Light issued that warning in a column advocating the preservation of civil liberties. But the theme of balance has also been taken up by those who feel that some curtailments of freedom are justified. As University of Chicago law professor Richard A. Posner argues:
If it is true . . . that the events of September 11 have revealed the United States to be in much greater jeopardy from international terrorism than had previously been believed . . . it stands to reason that out civil liberties will be curtailed. They should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty. All that can reasonably be asked of the responsible legislative and judicial officials is that they weigh the costs as carefully as the benefits.
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Curtailment of Civil Liberties Is Justified in Times of Crisis
About the author: Historian Jay Winik is a scholar at the University of Maryland’s School of Public Affairs and the author of April 1865: The Month That Saved America.
In 1995, a little-known operative, Abdul Hakim Murad, was arrested in the Philippines on a policeman’s hunch. Inside Murad’s apartment were passports and a homemade bomb factory—beakers, filters, fuses and funnels; gallons of sulfuric acid and nitric acid; large cooking kettles.
Handed over to intelligence agents, Murad was violently tortured. For weeks, according to the book “Under the Crescent Moon,” agents struck him with a chair and pounded him with a heavy piece of wood, breaking nearly every rib. But Murad said nothing. He taunted them. So they forced water into his mouth. They crushed lighted cigarettes into his private parts. Even then, he remained silent.
In the end, they broke him through a psychological trick. A few Philippine agents posed as members of Israel’s Mossad and told Murad they were taking him to Israel. Terrified of being turned over to the Israelis, he finally told all. Then and only then.
And what a treasure trove of information it was. One of his roommates was Ramzi Yousef, a mastermind of the 1993 World Trade Center bombing, now serving a 240-year term in a U.S. prison. More ominously, Murad recounted a horrific plot to assassinate Pope John Paul II in Manila, simultaneously blow up 11 U.S. airplanes in the...
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The Use of Military Tribunals to Try Suspected Terrorists Is Justified
About the author: Bruce Tucker Smith is a U.S. administrative-law judge and serves as a reservist in the Air Force Judge Advocate General’s Department.
The United States is at war and, in these extraordinary times, the law must be wielded not as a shield but as a sword. The legal response to the terrorist attacks must be an integral part of, not distinct from, America’s war effort. Tribunals will be swift, certain and fair. They will provide basic due process and will vindicate an aggrieved nation. Above all, the tribunals will render justice quickly: Justice delayed is most assuredly justice denied.
Unaccustomed as we are to hearing a president speak as a wartime commander in chief, ours has done so, declaring that a national emergency warrants activation of military tribunals to hear the prosecutions of those persons who wrought our latest day of infamy. Those noncitizen terror warriors who will stand before the tribunals are not entitled to the full protections of a system they most certainly would have destroyed.
The Dual Nature of Terrorism
The United States assuredly is at war in the factual sense but not precisely in the legal sense. That uncertainty poses a dilemma: What to do with a terror warrior once he is run to ground, for he is neither a lawful combatant nor a criminal in the classic sense. Military tribunals seem a highly appropriate forum in which to resolve the interwoven legal, factual and...
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The Use of Torture May Be Justified in Certain Circumstances
About the author: Alan M. Dershowitz is a Harvard law professor and the author of Shouting Fire: Civil Liberties in a Turbulent Age.
The FBI’s frustration over its inability to get material witnesses to talk has raised a disturbing question rarely debated in this country: When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure and outright torture?
The constitutional answer to this question may surprise people who are not familiar with the current U.S. Supreme Court interpretation of the 5th Amendment privilege against self-incrimination: Any interrogation technique, including the use of truth serum or even torture, is not prohibited. All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used. But the evidence could be used against that suspect in a non-criminal case—such as a deportation hearing—or against someone else.
If a suspect is given “use immunity”—a judicial decree announcing in advance that nothing the defendant says (or its fruits) can be used against him in a criminal case—he can be compelled to answer all proper questions. The issue then becomes what sorts of pressures can constitutionally be used to implement that compulsion.
We know that he can be imprisoned until he talks. But what if imprisonment is insufficient to...
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Government Anti- Terrorism Measures Threaten to Severely Weaken Civil Liberties
About the author: Valerie L. Demmer is an editorial consultant at the Humanist, the magazine of the American Humanist Association.
In response to the terrorist attacks of September 11, 2001, the Bush administration reacted swiftly and boldly, implementing programs it claimed would strengthen the security of the United States. President George W. Bush, Secretary of Defense Donald Rumsfeld, and Attorney General John Ashcroft have all adopted a firm and unyielding stance in executing their focused reply to the menace of global terrorism. An unfortunate byproduct of these aggressive moves, however, is the erosion of civil liberties. The administration has gone beyond the legitimate needs of national security and is infringing on constitutional freedoms in the name of patriotism and security.
The Patriot Act: Undermining the Constitution
The Patriot Act (Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act) was signed into law by Bush on October 26, 2001, after being rushed through Congress without giving members time to properly read or interpret its provisions. According to Representative Ron Paul of Texas (one of only three Republicans in the House to vote against the bill), “The bill wasn’t printed before the vote—at least I couldn’t get it. . . . It was a very complicated bill. Maybe a handful of staffers actually read it, but the bill definitely was not available to members before the...
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About the author: Harvey A. Silverglate is a lawyer and the coauthor of The Shadow University: The Betrayal of Liberty on America’s Campuses. Among the unsettling effects of the September 11 terrorist attacks on New York and Washington and the anthrax mailings that followed is their triggering, seemingly overnight, of a national debate over whether the United States should practice torture—as a matter of national policy—to combat terrorism. The protorture camp wants to authorize law-enforcement agents to inflict intense physical pain in order to extract information from suspected terrorists (the word “suspected” is often conveniently omitted by the law’s proponents) where that information might pinpoint the location of a “ticking bomb” or otherwise avert some imminent act of mass carnage.
So imagine the surprise of many long-time legal observers when Harvard Law professor Alan Dershowitz published an op-ed piece in the Los Angeles Times on November 8, 2001, arguing that “if we are to have torture, it should be authorized by the law” and that the authorities should be required to apply to judges for “torture warrants” in each case. A careful reading of his op-ed indicates that Dershowitz did not actually go so far as to say he favors torture. And in subsequent lectures and interviews he placed on record his personal opposition to torture. But the piece drew a firestorm of criticism from both liberals and libertarians,...
(The entire section is 2440 words.)