Constitutional Democracy Colloquium

The threat of terrorist attacks on the scale of those of September 11, 2001, or worse cannot be denied. That reality calls at a minimum for a reevaluation of the balance between liberty and security. If a diminution in liberty can be shown to yield a substantial security gain, the sacrifice may well be worth it. With the exception of the prohibition on torture, most civil liberties are not absolute, and therefore inherently entertain the possibility of balancing.

The approach adopted by the Bush administration since September 11, however, has been anything but balanced. In the name of what John Ashcroft calls “the paradigm of prevention,” the administration has sacrificed virtually all of the core commitments of the rule of law and in the process has very likely made us less, not more, secure.

The rule of law, the foundation of any system of civil liberties, includes five basic commitments: to equality, transparency, fair processes, checks and balances, and fundamental human rights. Yet the administration has abandoned its commitments to each of these values.

The most important is equality. In any fair system of justice, the balance between liberty and security ought to be struck in the same place for all. Yet in the wake of September 11, the administration has frequently sought to impose its most extreme burdens selectively on foreign nationals, as if to say to the American people, you can have your liberty and your security, too. Thus, the government has locked up more than five thousand persons in anti-terrorism preventive detention initiatives, virtually all of them foreign nationals. It has justified denying any rights to the men held at Guantánamo Bay, Cuba, on the ground that they are foreign nationals outside our borders, and therefore enjoy no rights. It has devised a system of military tribunals in which defendants can be convicted and executed on secret evidence, yet applies this system only to foreign nationals. And it has justified massive ethnic profiling by claiming that it is merely targeting “foreign nationals based on country of passport.”

We have also sacrificed commitments to transparency. Many of those arrested in the wake of September 11 were arrested in secret and tried in secret-effectively “disappeared.” The government refuses to disclose their identities to this day, even though it has determined that virtually none of them had anything to do with terrorism. Meanwhile, the Patriot Act expands the government’s surveillance powers while making it a crime for persons affected by its provisions to make that fact public.

Fair process has also been thrust aside in the name of prevention. Thousands of foreign nationals have been denied release on bond without any evidence that they posed any danger that would warrant their detention. And in the most extreme example, the administration claimed the unilateral power to declare any human being anywhere...