Balancing liberty and security

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How ironic that the war on terrorism we’ve been waging since September 11 — a war meant to ensure our safety — should itself inspire fear in some Americans.

Yet cries of “Big Brother” materialize whenever we hear about new government programs meant to enhance our security, such as increased information-sharing under the Patriot Act or the Total Information Awareness program. Some critics have even suggested that such measures could eventually lead to a totalitarian state.

Many won’t go that far, but they admit they’re concerned. When Attorney General John Ashcroft testified before Congress in March, Rep. Jose Serrano, New York Democrat, told him: “Some of the policies the [Justice] department has proposed to combat terrorism are deeply troubling, and I fear some officials are so intent on fighting against terror that they forget what we are fighting for.”

A healthy mistrust of government is commendable. Indeed, one could argue that such skepticism has helped the United States remain a free nation for well over two centuries.

But fears of a police state are overblown. We’re merely witnessing a recurring pattern in American history. Professor Geoffrey Stone of the University of Chicago recently outlined some of this history in an address to the Supreme Court Historical Society, and what he said shows how the pendulum between liberty and security swings as circumstances change.

In 1798, the United States was in a state of undeclared war with Napoleon’s France. To combat pro-French political views, Congress enacted the Alien and Sedition Acts to prohibit the publication of “false, scandalous and malicious writings” against the government.

It was, in effect, an effort to suppress political criticism of President John Adams, his policies and his administration. When Thomas Jefferson replaced Adams as president, he pardoned all those who were convicted under the act, which is today widely regarded as a stain on American liberty.

During the Civil War, President Lincoln suspended the writ of habeas corpus eight times, and the military imprisoned as many as 38,000 civilians. In 1866, a year after the war ended, the Supreme Court ruled Lincoln’s acts unconstitutional. Today, they are considered an excessive but necessary response to a wartime crisis. Indeed, some believe that, had Lincoln not acted, anti-draft riots might have ended the war with the United States divided.

During World War I, federal authorities acting under the Espionage Act prosecuted more than 2,000 war opponents. Though the Supreme Court initially upheld the law, over the next half-century it overruled every one of its World War I decisions, repudiating the excess of that wartime era.

Finally, and most notoriously, was the internment of Japanese-Americans during World War II. Under an executive order signed by President Franklin Roosevelt, more than 110,000 people of Japanese descent were forced to leave their homes in California, Washington, Oregon and Arizona. Most were detained in camps scattered around the West, where they were penned up behind barbed wire and watched over by armed guards. Years later, the government offered an official apology and reparations to each of the Japanese-American internees.

The historic path of the pendulum teaches useful lessons:

First, the American system is resilient. Significant events like September 11 alter the balance between liberty and security, but the pendulum always returns to center as the threat diminishes.

Second, the arc of the pendulum’s swing is not nearly as great as it once was. For example, two Americans, Jose Padilla and Yasser Hamdi, are being detained as part of the war on terror. But both men have exercised their habeas right. That’s a far cry from Roosevelt’s wholesale internment of an entire population group or Lincoln’s suspension of the writ. The watchful eye of the courts, Congress, the press and the public insures this trend will continue.

Third, history shows that we have been — and at times should be — willing to adjust the balance between liberty and security in times of crisis. We must, of course, be cautious. But not so cautious that we’re immediately prepared to accept apocalyptic claims that American liberty is failing.

Paul Rosenzweig is a senior legal research fellow in the Center for Legal and Judicial Studies at the Heritage Foundation.

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