At the heart of our constitutional order is a bold aspiration-that we can bind ourselves with deliberately considered, written commands so that we are guided in our approach to public problems by what Alexander Hamilton called "reflection and choice" rather than "accident and force." This aspiration is sometimes strained during crises. Unforeseen events, such as the terrorist attacks of September 11, test the extent to which we are meaningfully bound by our constitutional values when threatened by disorder or danger.
Historically, we have reason to be optimistic that our Constitution and its protections will survive this test. Explicit provisions in the Constitution anticipate and provide for emergencies, and our democracy has in the past withstood a series of trials, including devastating and lengthy periods of war. Yet some responses to emergency situations would clearly be beyond the pale and could derogate from our highest principles.
After the September 11 attacks, the legislative and executive branches enacted a series of measures seeking to punish those responsible and to prevent future violence. The ensuing debate about the propriety and legality of these measures has largely been a discussion about whether they have simply reapplied our constitutional principles in the context of a national crisis, or whether our political leaders have threatened our core beliefs about governance and individual liberty. This conversation is not just about how to deal with the continued threat of terrorism, but how to preserve our constitutional rule into the future. We can bring this debate into sharper relief by examining specific aspects of the Bush administration's antiterrorism efforts, which have been simultaneously defended as applications of longstanding constitutional principles and condemned as damaging our enduring legal ideals.
This article considers three prominent issues involving apparent conflict between civil liberties and the "war against terrorism"--the government's proposed eavesdropping on conversations between prisoners and their attorneys, the effectiveness of the constitutional "fight to be silent" for non-U.S. citizens facing possible deportation orders, and the Bush administration's planned military tribunals. Examining and evaluating these topics helps to highlight the concerns of contemporary policymakers while providing a vivid sense of what is at stake for U.S. citizens and others who seek protection under the Constitution in the twenty-first century. Put somewhat differently, exploring these components of our national antiterrorism efforts helps us depict and appreciate the challenge of applying our constitutional values amidst contemporary problems, while still Critically assessing whether these measures go too far.
Legal and Political Responses to September 11
The executive and legislative branches responded to the September terrorism attacks with policies designed to prosecute those involved and prevent additional threats. Since September, for example, the administration has imprisoned more than five hundred suspects on a variety of charges, including immigration violations, terrorist offenses, and espionage. The Department of Justice has refused to reveal the precise number of those held, the identities of most detainees, the specific reasons for their imprisonment, and the exact nature of the evidence used against them. (1)
Monitoring Privileged Conversations
As a supplement to this detention policy, the Department of Justice issued a role at the end of October allowing officials to monitor "privileged" conversations between terrorism suspects and their lawyers. The attorney-client privilege is a role of evidence governing what is admissible in court; it is based on a belief that it is more important to protect conversations between a lawyer and his or her client than to obtain all evidence that might be useful in legal proceedings. …