Guarding the Home Front: Will civil liberties be a casualty in the War on Terrorism?

This article appeared in the December 2001 issue of Reason magazine.

As the Declaration of Independence says, the main business of government is to secure rights, but legitimate government can’t do it by any means. It can’t violate rights in the name of securing them.

That frames the issue. Between those boundaries—and given a world of uncertainty—the devil is in the details. Governments too restrained leave rights exposed. By contrast, societies that trade liberty for security, as Ben Franklin noted, end often with neither.

Thus, the government’s war against terrorism implicates two kinds of rights—the rights governments are instituted to secure, and those they must respect in the process. At this writing, it appears that the terrorist attacks of September 11 resulted from a massive government failure to protect rights of the first kind. Predictably, friends of government are now saying that an undue regard for rights of the second kind led to that failure. That may be true, but it may also be special pleading. Were agencies prohibited from talking to each other in the name of privacy? Or did they simply fail to coordinate efforts? Those are the kinds of questions that need answering.

At this juncture, therefore, it ‘s difficult to say which civil liberties are most at risk. Certainly, as September 11 demonstrated, the liberties we created government to secure are at risk. But can we better secure them and remain free? Yes, if we act smartly. Above all, whether with surveillance or searches or due process, judicial oversight must be preserved—for citizens and non-citizens. It’s the final safeguard for liberty.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.