Constitutional Democracy Colloquium

Faced with genuine and serious threats, George W. Bush’s administration took prompt actions. It curtailed civil liberties, gave new powers to intelligence agencies, enhanced mass surveillance of the American people, made America a less attractive destination for international students, and created an offshore prison complex where it held that U.S. law need not restrict U.S. jailers. It unilaterally invaded a country that did not pose an imminent threat, undermining the United Nations, the North Atlantic Treaty Organization, and relations with our long-standing allies. These actions did not make Americans safe. They caused Americans to be killed, and will cause more Americans to be killed.

At the same time, the Bush administration did limit itself. It limited its promised reforms of the nation’s disorganized and dysfunctional intelligence agencies. It limited its commitment to Homeland Security, preferring to make symbolic announcements that we the people should be frightened and to impose burdensome but largely symbolic security checks rather than to address the vulnerabilities of our water, power, and transport systems. Underfunding local government, it funded expensive and counterproductive international war-and accordingly limited its commitment to a balanced budget. It also limited its commitment to the U.S. Constitution and the rule of law, claiming that the president’s right to wage war in the national defense exempted most of the executive branch and even the military from U.S. law.

Rule of law is fundamental. Damage to basic procedural guarantees can be long-lasting and hard to repair. When an American citizen is detained as an “enemy combatant,” it may seem that the most important question is whether the charge is accurate. But when the administration arrogates to itself the right to say who is an “enemy combatant” without any open hearing or appeal and on this basis denies citizens their rights to due process, it is not only the individual but our entire constitutional system that is damaged, and the precedent is damaging whether the charge is true in any individual case or not. When members of the U.S. armed forces are told that in their actions in Iraq they may disregard clear legal restrictions, this amounts to telling them to disregard their oath to “support” and “bear true faith to” the Constitution. And it is not good for soldiers and officers any more than presidents and cabinet members to think that the requirements of the Constitution and the Bill of Rights are optional.

Trade-offs between security and liberty are necessary, not only in current difficult circumstances. But these trade-offs must be made within the framework of constitutional democracy; efforts to bypass it damage it deeply. Moreover, we must ask not only about the balance between the two but also about the effectiveness with which security and liberty are provided.

T...