This topic considers the possible sources of conflict between our civil liberties and our national security needs.

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Shanon Armstrong
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1 A crisis such as a terrorist attack, war, domestic unrest, or economic collapse affects how we as a nation interpret our civil liberties. The terrorist attacks of September 11 are not the first national crisis America has encountered. They do, however, represent an unprecedented act of terrorism and raise new challenges as we seek to protect ourselves against any such future attacks. In the past century alone, our nation has grappled with such prolonged crises as the Depression, World War II, and the Cold War. America's responses to these crises often implicated our civil liberties and arguably affected how we define them today. This topic considers the possible sources of conflict between our civil liberties and our national security needs. Starter 1: Excerpt from Richard Posner, "Security Versus Civil Liberties," in The Atlantic Monthly (December 2001) Starter 2: Pat Oliphant political cartoon: "Watch Out for the Backswing, Kid" Starter 3: "Security Beefed Up at Cedar Rapids Public Library," The Onion, October 3, 2001 Starter 4: Excerpts from Remarks of Chief Justice William H. Rehnquist on Civil War suspension of writ of habeas corpus, Norfolk, Virginia, May 3, 2000 Note: The views expressed here have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association, nor do they represent the official position or policies of the ABA Standing Committee on Public Education. Page 1

Starter 1 for Civil Liberties in Times of Crisis Issue Are the laws defining our liberties absolute? Starter "We are a nation under law, but first we are a nation.

2 Starter 1 for Civil Liberties in Times of Crisis Issue Are the laws defining our liberties absolute? Starter "We are a nation under law, but first we are a nation. I want to emphasize something else, however: the malleability of law, its pragmatic rather than dogmatic character. The law is not absolute, and the slogan 'Fiat iustitia ruat caelum' ('Let justice be done though the heavens fall') is dangerous nonsense. The law is a human creation rather than a divine gift, a tool of government rather than a mandarin mystery. It is an instrument for promoting social welfare, and as the conditions essential to that welfare change, so must it change." Excerpted from Richard A. Posner "Security Versus Civil Liberties," in The Atlantic Monthly (December 2001) Focus Questions Posner asserts that the slogan "Let justice be done though the heavens fall" is "dangerous nonsense." Why do you think Posner believes this slogan is dangerous? Do you agree? Posner defines the law as "malleable," "pragmatic," and "not absolute." Do you agree? Can you identify any laws or legal principles that you think are unalterable or absolute? If, as Posner argues, the law is "an instrument for promoting social welfare," to what extent are civil liberties, on the one hand, and national security, on the other, an essential part of our nation's social welfare? Given the conditions in our nation after September 11, 2001, what is now the appropriate balance between these two concerns? Suggested Resources: Judge Posner's Biography William J. Brennan, Jr., "The Quest to Develop a Jurisprudence of Civil Liberties in Page 2

3 Times of Security Crises" George Will, "A Fetish of Rights without Parameters" Page 3

4 Starter 2 for Civil Liberties in Times of Crisis Issue How do increased security needs affect our civil liberties? Starter Pat Oliphant, "Watch Out for the Backswing, Kid" (political cartoon) Not for reproduction or distribution. PAT OLIPHANT Pat Oliphant. Reprinted with permission of UCLICK. All rights reserved. Focus Questions Why do you think Oliphant chose to depict Civil Liberties as a young child waving an American flag? What do you think Uncle Sam represents in this cartoon? How do you interpret Uncle Sam's attitude toward Civil Liberties? Do you believe this cartoon accurately reflects the position of civil liberties after September 11, 2001? Suggested Resources American Civil Liberties Union "Safe and Free" website Professor Lewis R. Katz, "Anti-Terrorism Laws: Too Much of a Good Thing" Page 4

5 Attorney General John Ashcroft's Testimony before the Senate Judiciary Committee, "Preserving Our Freedoms While Defending Against Terrorism," 12/06/01 Page 5

6 Starter 3 for Civil Liberties in Times of Crisis Issue When might efforts to secure America go too far? Starter Excerpt from The Onion America's Finest News Source, copyright 2001 CEDAR RAPIDS, IA In the wake of the Sept. 11 terrorist attacks on the World Trade Center and Pentagon, the Cedar Rapids Public Library is undertaking steps to tighten security, library officials announced Monday. "As caretakers of the most prominent public building in the second largest city in Iowa, this library can no longer afford to take chances," library director Glenda Quarles said. "Due to our limited budget, we can't devote the kind of resources and manpower to security that, say, the Library of Congress can. But because of our high profile and easy access, we feel a strong responsibility to ensure the safety and well-being of those members of the public who visit and use us."... A number of new security measures will directly affect the public: It will now become more difficult to obtain a library card, requiring a birth certificate and two forms of photo ID. The daily children's story hour has been shortened to 20 minutes. And while the library has always officially had a no-loitering rule on the books, it will now be strictly enforced. Cedar Rapids residents are praising the security upgrade as a necessary response to the events on the East Coast. "Some people might consider the prospect of metal detectors and three forms of ID for library cards a bit extreme, but we're living in a whole new world," longtime resident Frank Gonitz said. "The way I figure, if you've done nothing wrong, you have nothing to hide, right?" "I can't believe that just three weeks ago, I was naïve enough to believe that a library was a safe sanctuary for quiet reading and contemplative study," said Melinda Wallach, 52. "Maybe one day, things will return to normal. But I think the lesson here is, if it can happen at the Pentagon, it can happen anywhere." "Security Beefed Up at Cedar Rapids Public Library," The Onion, October 3, 2001 [Note: The Onion is a satirical newspaper published in both print and online editions. The preceding is an Page 6

7 excerpt from an article published in an online special edition of the newspaper that responded to the September 11 attacks. The names and events described in the story are invented.] Focus Questions What is the role of humor in this article? Is humor an appropriate approach to a serious topic? Why or why not? Cedar Rapids "resident" Frank Gonitz justifies the imposition of new security measures by saying "The way I figure it, if you've done nothing wrong, you have nothing to hide, right?" What do you think of this statement? Do you think that people with "nothing to hide" have any reason to be concerned about measures to increase our national security? The statement "if it can happen at the Pentagon, it can happen anywhere" plays upon the contrast between the Pentagon, a national symbol of our country's defense capabilities, and the relatively insignificant symbolism of a public library in a small Midwestern city. Should our security efforts and concerns be concentrated only on "clear" terrorist targets such as the Pentagon? How far should efforts to secure Americans from the threat of terrorism reach? Suggested Resources Wendy Doniger, "Terror and Gallows Humor: After September 11?" Roger Angell, "Uniform Bliss," from The New Yorker (Nov. 12, 2001). The New Yorker's approach to humor during the Second World War. Page 7

8 Starter 4 for Civil Liberties in Times of Crisis Issue It is permissible to suspend laws protecting individual rights in times of crisis? Starter [Chief Justice Rehnquist's remarks to the Norfolk and Portsmouth Bar Association focused on civil liberty in time of war. One of his topics was President Lincoln's suspension of the writ of habeas corpus during the Civil War. As the Chief Justice explains, "the writ of habeas corpus... was the means by which one who was arrested or confined by governmental authority could ask a court to require the person holding him in custody to show cause why he was being held....the United States Constitution provides that the writ of habeas corpus shall not be suspended, except when in time of war or rebellion the public safety shall require it." Lincoln's suspension of the writ was provoked by the need to protect a vital rail line from Philadelphia to Washington, which was sabotaged in the early days of the war. The suspension gave federal authorities greater power to arrest and hold anyone suspected of conspiring to sabotage the line. After the first arrest of a suspected saboteur, Chief Justice Taney issued an opinion declaring that the President alone did not have the authority to suspend the writ, and that only an act of Congress would suffice. There was, of course, no way for Taney to enforce his order, and it was ignored, but Lincoln referred to it in an address to a special session of Congress on July 4, Chief Justice Rehnquist quotes from President Lincoln's speech, as follows.] "Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?" Excerpts from Remarks of Chief Justice William H. Rehnquist at the 100th Anniversary Celebration of the Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000 Page 8

9 Focus Questions In his address to Congress, President Lincoln refers to a law that, in practice, "relieves more of the guilty than of the innocent." Our criminal justice system has numerous laws protecting the rights of the accused, and many of those protected by these laws may in fact be guilty of the crime of which they have been accused. Should we be willing to suspend such laws in times of crisis if we are able to convict more individuals who are guilty of crimes that threaten our national security? How would the possibility that some, perhaps only a few, innocent individuals might be falsely convicted affect your opinion? It is commonly stated that our political system represents "a government of laws, not of men." What does this statement mean to you? Did President Lincoln's action in suspending the writ of habeas corpus violate notions of "a government of laws, not of men"? What do you think President Lincoln meant to suggest when he asked "are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?" Article I, Section 9, of the U.S. Constitution provides that the writ of habeas corpus can be suspended "when in Cases of Rebellion or Invasion the public Safety may require it." The Constitution gives this power to the Congress, not to the executive branch, as Chief Justice Taney noted in his opinion responding to Lincoln's suspension of the writ. Why do you think the Constitution's drafters entrusted Congress with the power to suspend the writ, which gives detained or imprisoned citizens the right to demand that the government show cause for their detention? Do you agree with the drafters' decision? Suggested Resources Full text of Chief Justice Rehnquist's speech PBS NewsHour with Jim Lehrer: David Gergen's Interview with Chief Justice Rehnquist, author of "All the Laws But One: Civil Liberties in Wartime" (Nov. 11, 1998) Page 9

Starter 1: In what cases can we justify the use of military tribunals?

Starter 1: In what cases can we justify the use of military tribunals? The current "war on terrorism" is different from other military conflicts we have experienced in the past, but many of the issues we face today we have faced before in times of war. The starters in this