Civil Liberties and Anti-Terrorism Measures

The discussion of civil liberties and anti-terror addresses the balance needed between protection of fundamental individual rights and the prevention of activity that places the public in harm's way. Terrorism, although difficult to define, can be most succinctly described as any criminal act meant to manipulate a public audience beyond that of its immediate victims. Depending on the viewer, it has been seen both as tactical and strategic, justified and heinous, unlawful and heroic. Regardless of the rationale, it is clear that for the victims, many of whom are indirect or innocent bystanders, terrorism results in unlawful, and often devastating, violence.

Democratic societies cherish, and in many cases guarantee, individual freedom without interference or restriction by the government. Civil rights include the right to life, liberty and security; the right to privacy; and the right to a fair trial and due process. Some freedoms guaranteed in the United States are freedom of religion, freedom of speech, and freedom of assembly and association. During times of war, civil liberties may be limited or even suspended, and restored again once the war is over.

After the devastating September 11, 2001, attacks on the World Trade Center in New York City, the United States, under the leadership of President George W. Bush, responded strongly to the threat that international terrorists posed to national security and public safety. The War on Terror is an international military operation directed by the United States and United Kingdom, and supported by the North Atlantic Treaty Organization (NATO). In addition to the identification, location and destruction of terrorist cells, a key objective of the campaign is to defend American citizens and interests abroad and at home. The Department of Homeland Security (DHS) is responsible for dealing with domestic terrorist attacks.

The DHS has three primary objectives: to prevent attacks within the United States, to reduce the nation's vulnerability to terrorist attack and to minimize collateral damage after a terrorist attack. Since the agency's inception, the American public has engaged in a vigorous debate over issues such as oppressive legislation and the overextension of executive authority. The USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act, signed by President Bush on October 26, 2001, drew sharp criticism from civil libertarians for dramatically increasing the authority of the FBI and other law enforcement agencies to tap telephone and e-mail communications, as well as search private medical and financial records.

One aspect that has brought to the fore bitter differences in opinion is the nebulous definition of what should constitute a "war on terror." General John Ashcroft typified one side when he declared in December 2001 that those who argued against the measures being taken by the government were only aiding terrorists by using "phantoms of lost liberty" to scare the American public.

Nancy V. Baker, Regents Professor and head of the Department of Government at New Mexico State University, responded to Ashcroft by saying, "This grim warning is particularly disturbing in the context of a war against terrorism, because the war has no clear end or scope; it is not waged against a nation-state or even an ideology, but against age-old methods of violence and terror; it is bound neither by time, geography, nor specific adversaries." She argued that framing terrorist attacks as "acts of war" rather than crimes has serious ramifications for the distribution of power in the federal government and can circumvent the system of checks and balances by placing too much power in the hands of the executive branch.

Bruce Ackerman, Sterling Professor of Law and Political Science at Yale, goes one step further, raising the problem of a de-sensitization to "war on terror" rhetoric, which allows the government to equate what may be only ideological or existential threats with actual public safety dangers. Ackerman proposes the creation of an "emergency constitution" that would come into effect only in the event of a catastrophic attack. At that time, the executive would assume full emergency powers through a congressional passage rate that is increased in step-wise fashion, an "escalating cascade of supermajorities." The step-wise increase ensures that the government would revert to its normal status and civil liberties would be restored once the state of emergency ended.