Hanging on to liberty in a post-Sept.11 world

September 10, 2002 • Commentary
This article originally appeared in The Argus on September 10, 2002.

The American experience with terrorism can be fairly described as a “vicious cycle.” The cycle begins with a horrible attack like the calamity that we experienced on 9/11. Next, policymakers in Washington, D.C. proclaim that to prevent such disasters from recurring, they must “alter the balance between liberty and security” with “anti‐​terrorism” legislation.

The long‐​term consequences of the vicious cycle should trouble everyone. No one can deny the fact that if the cycle is not broken, America will eventually lose the key attribute that has made it great, namely, freedom. That would be a terrible tragedy because if our elected leaders throw our freedoms away, all of the fallen American soldiers from the previous wars would appear to have died for nothing at all.

If the overriding objective is to preserve life, to ensure that Osama bin Laden and his Islamo‐​fascists don’t kill any more Americans, a quick solution would be to lay down our arms and to surrender to him. If Americans would sheepishly comply with all of bin Laden’s commands, the killing will stop.

Of course, no true American would even consider surrendering to bin Laden or any other tin pot dictator. The objective, then, is not simply to preserve life, but to preserve our way of life, to preserve our freedom. When President Bush dispatched our troops to destroy bin Laden’s home base in Afghanistan, it was a move hailed by people from across the political spectrum. It was a decisive move in defense of American life and liberty.

On the home front, however, President Bush has been doing a poor job of defending freedom. Based upon the official actions he has taken, Bush seems to think that the only part of the Constitution that really matters is the section spelling out presidential powers. Congress, the courts and the people must fall in line and follow his lead. The White House, for example, recently made it clear that the decision about whether American should go to war with Iraq rests solely with the president. Members of Congress would be notified after the fact.

And when America is engaged in a war, Bush will decide if he wants the Bill of Rights to remain in force or not. After 9/11, the FBI launched a campaign of secretive arrests. Bush also issued a military order that said he could deprive lawful permanent residents of jury trials. More recently, the president has maintained that any citizen he accuses of being involved in terrorism can be arrested and held incommunicado. No lawyer. No court hearing. The president’s lawyers are redefining the “Great Writ” of habeas corpus to be something more akin to a prisoner grievance about lousy food and cramped quarters.

One common argument that has been employed to justify those restrictions of civil liberties is that the president is acting in “good faith.” Bush is not trying to oppress the people, this argument runs, he is trying to stop the terrorists. Yes, he is. But good intentions do not make his executive orders wise or constitutional. If Bill Clinton told Bush that he was too inexperienced and should step aside and let him return to power to conduct the war against bin Laden, few people would defend the move‐​even if Clinton’s sincere desire was to “help the country.”

Since the American homeland will remain vulnerable to terrorist attack for the foreseeable future, it is imperative that we come to grips with our security dilemma and get clear about what we are fighting for. Our president is the most powerful official on earth, but it is folly to believe that new “antiterrorism” laws will enable him to prevent future attacks. Our policymakers need to focus their attention on combating terrorism within the framework of a free society.

It is very misleading to frame our post‐​9/​11 dilemma as a matter of “liberty vs. security.” There are many things that our policymakers can do to enhance our security without sacrificing our liberty and privacy. Dispatching our military forces to the source is one example. Developing civil defense measures against a biochemical attack is another. Rooting out incompetence and negligence from our intelligence and law enforcement agencies is another. This list could go on. Restricting our civil liberties should be the last resort, but too often it has been the first to go. That must stop. The vicious cycle must be broken before it is too late.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice