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.

Selected full-text books and articles on this topic

Taking Liberties: The War on Terror and the Erosion of American Democracy
Susan N. Herman.
Oxford University Press, 2011
How Patriotic Is the Patriot Act? Freedom versus Security in the Age of Terrorism
Amitai Etzioni.
Routledge, 2005
Racial Profiling and the War on Terror: Changing Trends and Perspectives1
Bah, Abu B.
Ethnic Studies Review, Vol. 29, No. 1, Summer 2006
Terror in the Balance: Security, Liberty, and the Courts
Eric A. Posner; Adrian Vermeule.
Oxford University Press, 2007
The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights
Elaine Cassel.
Chicago Review Press, 2004
Checking Presidential Detention Power in the War on Terror: What Should We Expect from the Judiciary?
Wheeler, Darren A.
Presidential Studies Quarterly, Vol. 39, No. 4, December 2009
Scapegoats of September 11th: Hate Crimes and State Crimes in the War on Terror
Michael Welch.
Rutgers University Press, 2006
Answering the Critics of the Legal Case for the War on Terror
Rivkin, David B., Jr.
Harvard Journal of Law & Public Policy, Vol. 32, No. 2, Spring 2009
National Security versus Civil Liberties
Baker, Nancy V.
Presidential Studies Quarterly, Vol. 33, No. 3, September 2003
Rights, Liberties, and Security: Recalibrating the Balance after September 11
Taylor, Stuart, Jr.
Brookings Review, Vol. 21, No. 1, Winter 2003
In the Wake of September 11: Civil Liberties and Terrorism. (Looking at the Law)
Peabody, Bruce G.
Social Education, Vol. 66, No. 2, March 2002
September 11, 2001: The Constitution during Crisis; a New Perspective
Sachs, Lori.
Fordham Urban Law Journal, Vol. 29, No. 4, April 2002
Enemy Aliens
Cole, David.
Stanford Law Review, Vol. 54, No. 5, May 2002
The Patriot Act's Impact on the Government's Ability to Conduct Electronic Surveillance of Ongoing Domestic Communications
Henderson, Nathan C.
Duke Law Journal, Vol. 52, No. 1, October 2002
Can We Be Secure and Free?
Powers, Thomas F.
The Public Interest, Spring 2003
Misplaced Priorities: Human Rights and the Campaign against Terrorism. (Perspectives)
Roth, Kenneth.
Harvard International Review, Vol. 24, No. 3, Fall 2002
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