Soon after the George W. Bush administration began crafting its response to the terrorist attacks of September 11, 2001, voices could be heard questioning the impact of its antiterrorism measures on civil liberty. The Patriot Act would give the FBI "a blank warrant," warned the Village Voice (Hentoff 2001). When names of the detained were not released, one editorial asked "Why Not Disclose?" (Editorial 2001). The debate has not died down. In fact, according to the Washington Post, it has crystallized around opposing views of the nature of threat and the best way to confront it (Lane 2002a). Almost two years after the attacks, The New York Times discussed calculating the benefits and costs of the limits on liberty (Andrews 2003), and the The Economist (2003) posed "A question of freedom." In the intervening months, publications ranging from The Christian Science Monitor (Kiefer 2002) to the Sunday newspaper insert Parade Magazine (Klein 2002) have covered the debate summarized as national security versus civil liberties.
The debate has special saliency during wartime, because the suggestion that there is another side than the government's implies dissension and even subversion. This was the point raised by Attorney General John Ashcroft in Senate hearings in December 2001: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists--for they erode our national unity and diminish our resolve..." (U.S. Senate 2001, 316). 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. President Bush has noted the difference as well, commenting that, "We're at war in a different kind of war" (CNN 2003).
Defining the attacks as an act of war--instead of a domestic crime or a crime against humanity--has implications for the presidency as well as for the nation, opening up some policy avenues and foreclosing others. One important outcome has been the centralization of power within the Oval Office; presidents historically have been able to exercise greater authority in international than domestic matters, and in wartime than peacetime. In the current crisis environment, this administration has asserted unilateral authority in multiple arenas, including the claim that the other branches lack competence to review its "core executive" actions. At such moments of crisis, members of Congress and the judiciary are expected to defer to the president's definition of the national interest, and most have (Baker 2002).
Another product of wartime is that civil liberties are generally categorized as luxury items, like silk stockings during World War II, that divert valuable resources from the war effort. Historically, once war is over, those luxuries are again embraced. The White House, Congress, and the courts then reassert civil liberty values, perhaps even chiding themselves for their earlier restrictions. But a war on terrorism, bringing a securitization of domestic life, creates a different metaphor. Liberties are not luxuries to be sacrificed in the short term until we can afford them again. Liberties are gaping holes in the security fabric; they must be sealed off permanently if the nation is to be safe. The demands of a war on terrorism also undercut the likelihood that liberties can be reasserted, because a war without a clear end will never produce the peace of mind necessary to reflect on what we have lost.
"Firmly rooted in the Constitution." The administration characterizes its antiterrorism measures as fully consistent with civil liberties and denies that any of its actions constitute restrictions. A commitment to civil liberties extends up to the president, according to Ashcroft: "President Bush insists that our responses to evil respect the Constitution and value the freedoms of justice the Constitution guaranteed" (CNN 2003). …