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Terrorism and Civil Liberties in the U.S.
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In the name of fighting terrorism, the government of the United States has
curtailed some civil liberties, particularly the right to trial by jury, the right of privacy, and the protections against indefinite internment. This type of reaction is common among states confronted with terrorism, but it is a strategy that might pose grave risks to the fundamentals of American democracy as guaranteed in the Bill of Rights of the Constitution. These measures are dangerous because they give greater power to the government, specifically the executive branch, and increase the chances that power will be abused. Nevertheless, there are steps we can take to make sure these powers are not abused or, that at the minimum, the abuses of power are minimized. This paper describes three important institutions that can minimize the abuses of power by the executive branch: the legislature, the judiciary, and the press. This paper will analyze how these institutions have performed in the United States while comparing their role to that of similar institutions in other democracies that have also curtailed civil liberties to fight terrorism. The central argument of this paper is that the United States can better protect civil liberties while fighting terrorism even though in comparison to other countries, the power of the executive branch in the U.S. has been relatively constrained. CIVIL LIBERTIES IN EMERGENCIES
Democratic states are almost always tempted to restrict civil liberties when they
are confronted with a national security crisis; “wars” against terrorism are no exception. Usually, the curtailment of civil liberties takes the form of emergency powers, states of emergency, martial law, or some other type of state of exception which are codified within a constitution or legal code. For example, the U.S. Constitution allows for the suspension of the writ of habeas corpus during times of emergency (rebellion or invasion). Other times, civil liberties are restricted without a constitutional blueprint. In the United States, for instance, Congress passed the USA Patriot Act soon after the September 11 attacks and the president has further eroded civil liberties through the use of executive orders that have created military tribunals and the new legal designation of “enemy combatants.”
The premise and promise that underscores the curtailments of civil liberties is that
doing so will help the state fight the terrorists. By allowing for longer (and sometimes indefinite) detentions of suspects and greater leeway during interrogations, by shifting trials to military tribunals from jury-based courts, and by granting the security forces more freedom to conduct surveillance by undermining some guarantors of privacy, governments hope to be better able to capture, detain, interrogate, and imprison terrorists before they can launch another attack, and to eventually defeat the terrorist organization.
Whether or not (or under what conditions) these tactics are effective, though, is
beyond the scope of this paper. This is not an analysis or policy evaluation of whether restrictions of civil liberties are a beneficial strategy when fighting terrorism. To do that kind of analysis would require measuring the benefits of such measures (in terms of their effectiveness at fighting terrorism) in comparison to their costs (in terms of civil liberties). For this paper, I assume that the curtailments of civil liberties have some minimal efficacy even though this assumption may not accurately reflect reality. If curtailing civil liberties has no positive benefits, then such a strategy would clearly be unnecessary and unnecessarily dangerous regardless of how much abuses can be minimized. However,
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| | Authors: Freeman, Michael. |
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In the name of fighting terrorism, the government of the United States has
curtailed some civil liberties, particularly the right to trial by jury, the right of privacy,
and the protections against indefinite internment. This type of reaction is common
among states confronted with terrorism, but it is a strategy that might pose grave risks to
the fundamentals of American democracy as guaranteed in the Bill of Rights of the
Constitution. These measures are dangerous because they give greater power to the
government, specifically the executive branch, and increase the chances that power will
be abused. Nevertheless, there are steps we can take to make sure these powers are not
abused or, that at the minimum, the abuses of power are minimized. This paper describes
three important institutions that can minimize the abuses of power by the executive
branch: the legislature, the judiciary, and the press. This paper will analyze how these
institutions have performed in the United States while comparing their role to that of
similar institutions in other democracies that have also curtailed civil liberties to fight
terrorism. The central argument of this paper is that the United States can better protect
civil liberties while fighting terrorism even though in comparison to other countries, the
power of the executive branch in the U.S. has been relatively constrained.
CIVIL LIBERTIES IN EMERGENCIES
Democratic states are almost always tempted to restrict civil liberties when they
are confronted with a national security crisis; “wars” against terrorism are no exception.
Usually, the curtailment of civil liberties takes the form of emergency powers, states of
emergency, martial law, or some other type of state of exception which are codified
within a constitution or legal code. For example, the U.S. Constitution allows for the
suspension of the writ of habeas corpus during times of emergency (rebellion or invasion).
Other times, civil liberties are restricted without a constitutional blueprint. In the United
States, for instance, Congress passed the USA Patriot Act soon after the September 11
attacks and the president has further eroded civil liberties through the use of executive
orders that have created military tribunals and the new legal designation of “enemy
combatants.”
The premise and promise that underscores the curtailments of civil liberties is that
doing so will help the state fight the terrorists. By allowing for longer (and sometimes
indefinite) detentions of suspects and greater leeway during interrogations, by shifting
trials to military tribunals from jury-based courts, and by granting the security forces
more freedom to conduct surveillance by undermining some guarantors of privacy,
governments hope to be better able to capture, detain, interrogate, and imprison terrorists
before they can launch another attack, and to eventually defeat the terrorist organization.
Whether or not (or under what conditions) these tactics are effective, though, is
beyond the scope of this paper. This is not an analysis or policy evaluation of whether
restrictions of civil liberties are a beneficial strategy when fighting terrorism. To do that
kind of analysis would require measuring the benefits of such measures (in terms of their
effectiveness at fighting terrorism) in comparison to their costs (in terms of civil liberties).
For this paper, I assume that the curtailments of civil liberties have some minimal
efficacy even though this assumption may not accurately reflect reality. If curtailing civil
liberties has no positive benefits, then such a strategy would clearly be unnecessary and
unnecessarily dangerous regardless of how much abuses can be minimized. However,
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