One of America?s founding fathers, Benjamin Franklin, warned his fellow citizens to cherish and defend their liberties set out in the U.S. Constitution and Bill of Rights: ?They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.?
But as the U.S. government continues to fight a war of indefinite duration against a shadowy enemy that owes allegiance to no state, many legal scholars say some infringements on American?s cherished civil liberties are necessary to prevent future terror attacks.
David Cole, professor of law at Georgetown University, is not one of them. ?The bottom line that I insist upon,? he says, ?is that basic human rights should not be denied to anybody. And what the Bill of Rights identifies were understood - at the time the Bill of Rights was drafted - as natural rights, God given rights. God didn?t give them to people with passports. God didn?t give them to white people. God gave them to all people.?
David Cole says since September 11, 2001 American citizens haven?t had to choose which civil liberties they are willing to sacrifice in the name of greater security. Instead, the U.S. government has targeted foreign nationals from Arab and Muslim countries who cannot vote and thus have little political importance. Mr. Cole says American citizens should beware.
?History shows that what the government does to foreign nationals today is but a precursor for what it will do to citizens tomorrow,? he says. ?Every significant measure of political repression applied to citizens ? from guilt by association to punishing subversive speech to preventative detention to political spying - started out as an anti-alien measure but was ultimately extended to U.S. citizens. And we?ve already seen that line crossed here with respect to enemy combatants.?
?The reality is we do have a problem of terrorists trying to destroy us,? says Judge Michael Chertoff, who sits on the U.S. Court of Appeals. He previously served as an assistant attorney general for the U.S. Department of Justice.
?And the difficulty,? he says, ?is when someone like David Cole says, ?Well, only one in a thousand people really is a threat.? The problem is that one in a thousand people can kill a million people. One person with the right type of technology - putting plutonium in a water system or detonating a bomb in the Lincoln Tunnel - could cause enormous havoc.?
Judge Chertoff defends the government?s practice of rounding up foreign nationals and detaining them if they have committed criminal offenses or if they are not in the country legally.
?Even if it were true that only a fraction of the people picked up under this lawful process actually posed a danger,? he says, ?would it have been responsible for the Administration to take the opposite position? To let them all go on bail because you don?t have enough to prove a case beyond a reasonable doubt? And then, if one or two decided to blow up the Lincoln Tunnel and a couple of thousand people were killed, would the next 9/11 commission say that?s a great choice. Let?s keep it up? Or would people say the government wasn?t behaving responsibly
Judge Chertoff and many legal scholars argue that the traditional openness of the U.S. government and the public?s access to information may be abridged in the current political climate if it is necessary to protect American citizens.
John Yoo, former deputy assistant attorney general for the Department of Justice, is a visiting scholar at the American Enterprise Institute, a Washington-based research organization. He says the government has an interest in keeping information about terror arrests from the public because it can be used by terrorists against us.
An example is the case against Zacaria Moussaoui, an admitted Al Qaeda sympathizer on trial in a U.S. court for his alleged role in the 9/11 attacks on New York and Washington. Mr. Moussaoui wants direct access to three Al Qaeda terrorists who he says can prove he wasn?t involved in the attacks. The government has so far denied him such access because that would interrupt key interrogations. John Yoo says the case against Mr. Moussaoui is crucial because it deals with the constitutional rights enjoyed in peacetime as opposed to those in wartime.