Are American Liberties at Risk?
What threats to our constitutional culture should most concern us in the recent executive and legislative responses to September 11? asked Kathleen M. Sullivan, J.D. '81, in her Tanner Lectures on Human Values. She spoke on "War, Peace, and Civil Liberties," November 7 and 8, in Lowell Auditorium. The lectures are sponsored by the Office of the President and the Center for Ethics and the Professions. Sullivan, formerly a professor of law at Harvard and a member of the center, and now dean of Stanford Law School, argued that we can meet the present emergency within the Constitution.
Compared with official censorship of wartime dissidents or opposition leaders during the Civil War and the World Wars, Sullivan said, current state action to stop dissent or questioning of national policy is "notably restrained. Canceling Bill Maher's Politically Incorrect on a few local television affiliates is really not the same as putting Eugene Debs in prison for 10 years...." She sees "no crude, overt official censorship of forbidden viewpoints" in the text of the USA Patriot Act, antiterrorism legislation signed into law in October.
But that act does "raise a few new sorts of privacy concerns," she said. "First, it allows wiretaps of telephone conversations...able to rove with the person who is under suspicion, rather than be confined to a particular telephone number that might have been used in connection with the crime." Whatever the actual worries this occasions, Sullivan said, "In a world of cellular phones and proliferating wireless communication devices, it might be said to merely restore...an equilibrium between government and suspect that might have been tipped for the suspect." The same applies to the law's extension to e-mail--to search technologies, in an analogy to the telephone, "that purport to determine what number you have called without capturing the content of what you said."
The biggest departure from past constitutional practice under the new law, said Sullivan, is "the detention in secret and in many cases without access to family contacts or counsel of the 1,174 people who've been rounded up in connection with September 11." The procedure is nothing like the infamous internment of 120,000 people of Japanese descent, some of them U.S. citizens, in World War II, she said, "but it's a number that has been climbing exponentially in the last two months....The new act adds to the authority of the attorney general and the INS the power to detain any immigrant suspected of involvement in terrorism for up to seven days for questioning, after which he must be released unless charged with criminal or immigration violations, even if those are not themselves links to terrorism." Though the attorney general asked for indefinite detention, some civil-liberties advocates think he got more power than is allowable. The procedure, said Sullivan, is worrisome because of "its potential for selective, racially specific or ethnically or religiously specific, burden on noncitizens and even immigrant citizens who may be incorrectly identified through racial profiling."
The major civil-liberties concern Sullivan sees is "the danger of government secrecy....Citizens cannot monitor and check government actions they do not know about." She fears government "denials of preconditions for exercising our rights--information gaps, secret tribunals, intelligence functions merging into law enforcement." To confront the prospective danger, we must "make sure that we increase the space for public discourse, judgment, monitoring, and criticism..."
Sullivan emphasized repeatedly her view that the nation ought not to suspend the Constitution to deal with the emergency on different terms, thereby creating a constitutional "black hole." When emergencies come, the balance between liberty and security can be adjusted. "Our existing constitution," she said, "is up to the task of interpretive adaptation to these new conditions, and no universal emergency principle should save us from the hard work--case by case, right by right, structure by structure--of keeping an interpretive equilibrium between first principle and new context."
We give much discretion to the executive in time of trouble. Yet, said Sullivan, the features of our constitutional system can enable us "to keep discretion from encroaching so far upon law as to alter our identity." Separation of powers "interposes judicial and legislative limitation on executive power." Second, the "requirement of transparency" enables "accountability to the people even if that requires some positive disgorgement of information from the government." Third, the principle of equality is a "principle of generalizability. If we generalize the burdens on liberty that we might undertake in a quest for greater security, we'll do less to inhibit liberty....
"We do not need a new constitution with new emergency powers," said Sullivan. "We just need to make wise and vigilant use of the Constitution we've got." vChristopher Reed