The Law and Liberty

Historian Martin Miller teaches in the Master of Arts in Liberal Studies program, with class every Wednesday night. The fall semester had barely begun--just one class meeting had been held--when his course became at once completely altered and entirely essential.

Miller teaches "Foundations of Modern Terrorism," a class that, by the time of its second meeting on Wednesday, September 12, had become one of the most relevant on campus. "It was electrifying," Miller says. "That night, I just threw out the assignment."

One week later, the class continued to earn current-events credibility. A student who had returned from a day-long business trip to New York shared a story that captured the conflicting mood of a nation suddenly faced with the real meaning of rights and security. "He had a flight scheduled for Wednesday to go up to New York and come back in time for class," Miller recounts. "So he went to the airport on Tuesday, a day early, just to calm his anxieties and make sure that what he was taking on board could get through security.

"He had with him the course pack for my course, a big, thick, yellow binder with the title 'The Foundations of Modern Terrorism.' The minute they saw that, they asked whether he was planning on taking that along on the trip. And he said he was because he had an assignment and wanted to use the plane time to read--in fact, he had structured his work week so that was exactly the time he had to read it."

The security worker who had questioned the student "went away and came back with three guards, who proceeded to interrogate him--demanded that he show his Duke student card, prove that he was officially in this MALS course. They had all these questions. Then they went away and had a little chat and came back, and had decided the following. They had examined it and understood that it was just a book. He had these choices: He could leave the course pack at home, he could take it with him and put it in his suitcase under the plane, he could take it on board and put it in his carry-on, but it would have to be under the seat, stowed away."

"What he could not do was take it on board and read it, which upset him tremendously--he was still very upset when he was telling this to the class," Miller says. "For him, this was a case of infringement upon liberty. He didn't call it privacy; he called it liberty."

The class was also "appropriately upset with the forces of order and felt that his rights had been violated," he says. "But then someone said, suppose you sat down next to somebody on a plane and you saw them open up a big, thick, yellow binder called 'The Foundations of Modern Terrorism.' What would you think? And then it changed a little bit. Everyone got totally confused, because this is a gray area that you're talking about."

On a special episode written by Aaron Sorkin in response to the terrorist attacks and their aftermath, The West Wing was given over to this gray area between liberty and security, the conflict between the freedom to do as we please and the necessity to preserve our nation's safety

--both of which can be put in the category of freedom from fear. Most of the episode's dialogue was, not surprisingly, an impassioned defense of liberty and tolerance. But one character, press secretary C.J. Cregg, was revealed to be a staunch supporter of intelligence gathering and stronger national security measures. "Liberties, shmiberties," she responds to her more rights-minded colleagues. "We're going to have to do some stuff."

That "stuff," as originally envisioned by Attorney General John Ashcroft and sent to Congress not long after the towers' collapse, may have been seen as draconian by some. But in those first days, few raised cautionary flags. In fact, Newsweek reported that an initial request by Ashcroft was turned into an amendment and approved, giving law enforcement expanded license for what amounts to roving wiretaps, the installation of technology anywhere in the U.S. to capture information about telephone and electronic communications, with the approval of just one judge. "Within hours of the rushed vote," the magazine said, "the American Civil Liberties Union got calls from Senate offices asking, 'What did we just do?' Well, says the ACLU's Gregory T. Nojeim, 'they enacted an amendment that will basically function like a blank warrant. It writes meaningful judicial oversight out of the process.' "

The initial rush to reaction dovetails with history, says Scott Silliman, director of the law school's Center for Law, Ethics, and National Security. "After the Oklahoma City bombing in 1995, Congress went to the floor to debate what measures could be taken to change the laws, to change legislation, to give our law-enforcement agencies better tools for infiltrating terrorist organizations--roving wiretaps and the like. And there were overtures made that would have pushed our civil liberties too far. Wise minds prevailed. I would expect to see the same thing happen over the next several months on Capitol Hill, and hopefully the same thing will happen."

That first week saw several "overtures" like the request for broader wiretap and communications oversight powers. The Justice Department wanted congressional approval of unlimited detention of aliens if necessary. Senator Dianne Feinstein, a California Democrat, floated a proposal to keep international students out of the country for the next six months. And, as Newsweek reported, the Senate approved allowing the government to collect information about Internet customers' activities, from e-mail headers to downloads to where they surf on the Web. Few legislators could be heard trying to slow things down.

Dorm Response: Showing the colors. Les Todd.

"Like most of us, I started thinking about these issues in the days following September 11, already hearing thoughtful people saying we must be prepared to sacrifice some of our civil liberties," said Duke law professor James Boyle at an October forum at the law school. "And I became more and more concerned over the succeeding days. Perhaps these measures are required, but all of the things which lead us not to discuss them thoughtfully should be dismissed immediately."

"Anything with a heart-tugging title immediately attached to it ought to cause us automatically to sit still and think twice," Boyle said. "The principal act is called Provide Appropriate Tools Required to Intercept and Obstruct Terrorism--that spells out 'patriot.' So if you're against it, then you're obviously not one. And I can tell you that the countries in which people started to talk about 'homeland security' have not been very happy afterwards--you can ask someone from South Africa, you can ask someone from the Soviet Union, you can ask someone from Nazi Germany. Appealing to 'the Homeland' in the title of an office is a device to short-circuit rather than to encourage thought."

Reacting quickly to the threat of future terrorism with specific legislation, Boyle said, was fraught with difficulty. "We don't know the extent of the future danger that we're guarding against, to a very clear extent. We don't know how effective any of those things that we're going to do will be in guarding against that danger, and we don't understand terribly well what is being done. And all of this was going at breakneck speed. This is not the way to do public discussion."

Then the pace slowed. The Senate's undebated passage of the resolution on the use of force against terrorism led Senator Robert Byrd, Democrat of West Virginia, to scold his colleagues: "The president has declared ours to be a nation at war with global terrorism. We have united behind him in this hour of crisis, but we remain mindful of the somber history of this nation, of the blood that has been shed over the centuries to protect and defend the ideals enshrined in our Constitution. We must, therefore, be as constant in our vigilance of the Constitution as we are strong in our battle against terrorism."

An unlikely coalition of interests began to be heard emphasizing concerns about the encroachment of national-security issues into the area of civil liberties. Representative Bob Barr, a staunch conservative Republican from Georgia, found himself in agreement with Maxine Waters and Barney Frank, who are among the more left-leaning Democrats in the House. Representative Dick Armey of Texas, another steadfast Republican, was quoted before the first series of votes on the Patriot Act as saying, "This is about how we equip our anti-espionage, counter-terrorism agencies with the tools they want while we still preserve the most fundamental thing, which is the civil liberties of the American people." And the website Time.com had perhaps the most vivid illustration of the diversity of the reaction against rubber-stamping Ashcroft's proposals; it reported that the 150 groups that came together around this issue to form an umbrella group, In Defense of Freedom, "may be the first umbrella that Phyllis Schlafly's Eagle Forum has ever shared with the National Gay and Lesbian Task Force."

As the weeks passed, the vigilance Senator Byrd called for--and thus a more thoughtful debate--came back to the fore, even to the point where partisan accusations began flying again between the very members of Congress who had joined together in a solemn and spontaneous rendition of "God Bless America." But time and serious debate, said Boyle, were exactly what was needed.

"What we had in front of us was a very, very, very, very bad bill, which, as it went through conference and was criticized by people on both sides, got a lot better," he said. Better, but to law professors and historians alike, still providing cause for concern.

Benchmarks:capturing Old Glory. Les Todd.

Christopher Schroeder, professor of law and public policy studies, director of the Program in Public Law, and co-chair of the Center for the Study of Congress, opened the law school forum by noting that regardless of the final form of new laws, the process of passing those laws should have brought new depth to the public conversation. "Notwithstanding the movement on the legislative front," he said, "there remains a number of pressing issues and concerns that are regularly raised in times of national crisis, and the question is to what extent normally expected civil liberties ought to be adjusted and modified in the face of what is considered to be exigent circumstances."

The forum's first official speaker, former U.S. Solicitor General and current Douglas B. Maggs Professor of Law Walter Dellinger, labeled himself "as confused as anyone else" by the question. "How should we respond when we feel this conflict between the civil liberties we have cherished and the security that we believe to be essential?"

"I think we're confused because all of our various paradigms or models seem to be conflating in on one another," he said. "We've kept separate, for example, the area of war and the area of domestic law enforcement--of our criminal justice system, of due process, of trial by jury and the right to confront one's accusers, the safeguards about the techniques for gathering evidence. And when these two spheres of war and criminal justice come so much into conflict, and we're not sure which one we're in, we face maximum confusion about what the standards even are that we're looking for."

The notion that security is essential is acknowledged by even the most ardent civil libertarians. "It would be foolish to ignore the fact that somebody has attacked us, that there is some group out there that is very well organized, extremely efficient, and has a mission to accomplish," historian Miller says. "It's ridiculous not to consider that some measures have to be taken, which is why the issue of security is as real as it is."

Duke law professor James Coleman came to the law school forum just a few hours after a death-row client of his facing imminent execution received the first-ever sentence commutation from North Carolina Governor Mike Easley. "In defending civil liberties, we can't ignore the legitimate concerns that people have about safety," he said. "We can't afford to defend individual rights simply by criticizing and opposing the things which threaten us. We have to realize that people today are genuinely afraid for their safety, and that their fear is legitimate."

"It would be an outrage to justice if the people who committed these crimes went unpunished," Boyle agreed. "The difficulty is in thinking about how to do that, and how, in the process of doing it, not to lay seeds for future crimes of equal gravity."

Addressing legislative proposals one by one, in a timely but careful fashion, was a near-unanimous solution for the panelists. "What we have to do is keep our heads about us," Dellinger said. "The biggest mistake we could make is to assume that we're either for all of these things because we're patriots and we want to defend the national security of the United States, or that we're civil libertarians and have to of course reject any of them. We're entering into a time when we have to think about each one quite carefully and without preconceptions."

"There's no abstract way of solving this. The way to solve this is point by point, proposal by proposal, instance by instance," said Boyle. "You have to go through all those punctilious details in order to figure out what sorts of trade-offs you are willing to make, because many of the biggest threats to our privacy are not actually in this law at all."

"Rather, it's in the effect that laws like these have on the social consensus, on making pervasive surveillance--like the cameras that are watching us now--seem normal," he added, referring to the live webcast of the forum. "When pervasive surveillance and DNA testing and biometric testing come to seem normal, we move into a different society. Our understandings become different, informal understandings, and much of it never rises to the level of law."

Those informal understandings occur bit by bit, as technology advances and as society not only allows but accepts and even embraces measures that can be double-edged. Law professor and constitutional scholar William Van Alstyne looks to the relatively new idea of red-light cameras, which capture the license plates of red-light runners, as an example of the peril of progress.

"Data has already been collected on us," he says, expressing concern about whether the film records from the red-light traps are kept or reused. "Wherever we use a credit card, wherever the ATM machine is used, whenever you rent a videotape. These tell-tale electronic tracks can easily be aggregated into commercially interesting profiles and government profiles.

"It's like cameras in stores. It's like cameras in the place of employment. It's like the camera in the women's fitting room. It's like the employer who reserves the right to monitor your computer, and they find out where you've been. The Orwellian totality of it can reduce it to this feeling that, well, we all want to be safe, and we're grateful to have these devices here in the public trust. It may discourage the stalker or the mugger, so we should be happy.

Vigils: American votives. Greg Altman '95.

And I'm so pleased to open my suitcase, because everyone else is."

"There is a change in the characterology of the culture that will ultimately produce a more Orwellian, cowed population," he says. "Even if the government does not act perniciously, there is a demoralization of the spirit that comes from having a publicly recorded life."

Another danger that arises from a society willing to accept such intrusions into personal liberties is the acclimation to intrusions against others. At the forum, law professor Jerome Culp expressed deep concerns about racial profiling, which has now been extended from African Americans to Arab Americans. Culp quoted a columnist from The New York Observer as saying, "who doesn't wish that there was some form of racial profiling on airline passengers?"

"One of the points that that quote suggests to me, in thinking about where we are as a society, is that we are trying to take a series of important civil rights off the table," Culp said. "We can't talk about racial profiling now, because security is so important. It's so important, we cannot even get to that question."

Coleman spoke to the same point, even admitting to listening to radio talk-show host Don Imus to drive his message home. "In the last couple of weeks, there has been a lot of discussion on the program about whether, in light of the events of the last month, racial profiling should be reconsidered--at least for people who might be terrorists. The answer is that racial profiling is wrong whether the profiling is directed at African Americans or Arab Americans.

"I've often had the experience that all black men have had of being in an elevator and having people physically react to our presence, out of fear of what we might do there. But I've never been asked to leave an elevator to allay the fears of such people. It is understandable that some of us would be concerned if we found ourselves on a cross-country flight with four or five young men on their way to Los Angeles for a meeting of the law student division of the Arab-American Bar Association. But really, the question is whether it is in any way defensible that they should be asked to leave the plane in order to allay our fears."

"I didn't understand, growing up after World War II, how we could have put the Japanese in internment camps," Culp said. "But when I woke up on September 12, and I listened to my fellow citizens and I listened to my fairly liberal 'Critical Race Theory' class, I understood that we're only two or three terrorist incidents away from doing it again."

History has much to teach us as we grapple with these issues. Miller points out that "this country's experience with terrorism does go back more than a hundred years," including the 1901 assassination of President McKinley by Leon Czogolsz, described by the White House website as "a deranged anarchist," and the 1920 bombing of J.P. Morgan's Wall Street bank, scars from which are still visible on the building. And the national experience of the conflict between security and liberty goes back more than a century before that.

"Our history is not comforting when we think about the degree to which we have overestimated security threats and been too willing to jettison civil liberties," Dellinger said at the forum. "I think of the Alien and Sedition Acts [in 1798], when we thought we saw enemies of the Republic in people who had a different view of what the emerging government should be. The horror of the Japanese internment being upheld for Americans of Japanese ancestry in the case of Korematsu [a 1944 Supreme Court decision affirming that a Japanese American named Fred Korematsu had violated the law by trying to evade that mass detention]. And one of the most humiliating, destructive, and indefensible events in American history--the wiretapping of Dr. Martin Luther King and the use of those wiretaps by officials and agents of the United States government to try to influence the activities of the civil rights movement."

At the same time, he said, terrorism is a legitimate threat, one that came frighteningly close to succeeding even before September 11. "We stopped them from blowing up the Los Angeles airport on the Millennium. We stopped the destruction of the Statue of Liberty," he said. "We forget how close these attempts came. The only thing that has stopped it is infiltration and surveillance. We have to move into a century where our ability to trace and monitor activities takes precedence."

The effect on civil liberties is mitigated, Dellinger said, if the intrusion reaches everyone. "I would try to begin by being more skeptical and more concerned about any of the proposals that adversely affect some of us more than others, and more willing to consider proposals that seem to affect all of us in a more but never perfectly equal fashion. I'm far more willing to consider issues that sacrifice all of our privacy a bit, because at least we're all in that more or less together."

Other legal scholars, including Boyle and Culp, seem not quite as ready to accept new monitoring and surveillance methods as Dellinger. "I've seen very little in the reform bills for imposing penalties on people for the misuse of the information that they get from these policies," said Culp. "It is absolutely necessary that the police and the FBI and the agents and everybody else involved in this process not be able to abuse this process. If we don't impose penalties, there will be abuse."

Patriotism: A Floral Tribute. Greg Altman '95.

"On this, Walter and I fundamentally disagree," Boyle said. "The National Security Agency model of information-gathering, which applies to all communications that go outside the United States--though not, we are told, to those that go within--is basically to gather everything and hope that at some point technology will catch up and allow you to actually process it. I'm not sure which I'm more frightened of--the blindness that believes that this kind of mass sacrifice of everyone's privacy will actually do any good, or the fear that the technology might actually catch up, so that it would allow large-scale processing. Both, to me, seem equally scary.

"The great wish after this horrible thing is for us to sacrifice, and hope that by sacrificing, we somehow make the future happening less likely. Sacrifice something--blood, our money, our privacy. Giving blood or money may do some good--but giving up our privacy, I fear, will do none."

The actual "giving up" of privacy might seem a quaint notion to someone who accepts "cookies" on the Internet, calls a friend with caller ID, or stays on the line after hearing a taped voice saying "this conversation may be taped for quality purposes." While privacy does need continued protection, even as it changes, Miller points out that today's idea of privacy is vastly different, like it or not.

"The notion of privacy has disappeared from American life in the ways that it once existed," Miller says. "Nobody seems to realize that we have voluntarily surrendered that level of liberty to degrees that the Soviet Union, in its day, would never have been able to imagine, let alone been able to do."

A recent New York Times article on the new government measures quotes a Coloradan as saying, "Let them try to make me sign up for a national ID card--I dare them." Miller's brief laugh about the quote is a bit rueful as he ticks off all the ways Americans can be identified, from Social Security cards and driver's licenses to computer-use tracking. "It's already out there," he says. "It's done."

How can the need for security be reconciled with the need for liberty? Civil libertarians--even as they recognize the need for security--are leery of government intrusions. And yet, they look to the government for the answer.

"We need to make sure we have high-level judicial approval," said Dellinger at the forum. "We need to make sure the ends really justify it--looking at Monica Lewinsky's book records is not as justified as looking at the book records of someone who was looking at books about fertilizer bombs at the time of Oklahoma City, and yet some prosecutors didn't see that there was a difference there."

"Let me throw out a series of principles," Boyle said. "Avoid the demonization of new technologies--these are not automatically good or bad, and we need technology people as well as law people to analyze them. Beware of the outliers not in the main bills that are subject to scrutiny. Beware of the fact that other forces are not above using this terrible tragedy to get what they want--the Critical Infrastructure Protection Act allows private industries to disclose to the government any computer-related standard system or network--and thereby to receive anti-trust immunity--on the theory that this will help law enforcement deal better with some of the threats to that technology. I imagine any number of computer companies might think this is a simply wonderful thing, for reasons unconnected to their deep concern for national security.

"Finally, don't trust judges to be the backstop for all this. Justice [William] Rehnquist and Judge [Richard] Posner have both said, in 2001, that they believe Korematsu to have been correctly decided."

William Van Alstyne insists that sunset provisions are critical additions to any laws passed, requiring Congress to vote to re-authorize the legislation or watch it automatically expire. "These laws tend to linger beyond the emergency that may either authentically or emotionally have been an adequate justification," he says. "A sunset provision is just a providential prophylactic--if the conditions persist, re-enact it. But force the point where you have to consider it again."

That point was indeed forced when the House passed the Patriot Act with a five-year sunset provision--although the Senate's version, the Uniting and Strengthening America Act of 2001, called for leaving the legislation in place unless it was overturned. Overall, calmer legislative heads seemed to prevail, at least when compared to the initial series of requests from the administration.

That calm must extend to recognizing not only the need to protect liberties, but also the fears and threats that Americans face in a nation that went through a wrenching change one September morning. Van Alstyne says there are some sacrifices that can be made in both areas. "We're giving up privacy, which was never 'a right,' if the government wanted to move. Would we willingly yield? I think we should willingly yield to the extent that these measures seem well calculated to provide that minimum degree of security which now seems very important to try to restore.

"Not to would be like saying in World War II, 'Well, I don't want to give up my freedom in the sense that I want to continue to drive my car every weekend. I mean, gee, beating the Japs isn't worth giving that up--what is it to be free in California if you don't drive your convertible?' You're not worrying about civil liberties. You're just fundamentally selfish. We're giving up what used to be an easier lifestyle--but I don't make anything of the rhetoric at that level of antagonistic banality."

"If we simply oppose every outrageous proposal that is made to secure our safety, we run the risk in the long run of losing our civil liberties by making them appear to be in opposition to safety and security," Coleman said at the forum, advocating careful discourse. "Those of us who care about civil liberties have an obligation to make civil liberties relevant to the reality with which people are struggling. We do this by engaging in the effort to provide security by seeking rules that also protect individual rights."

"So far, I think we've been pretty level-headed," Miller says. "Ashcroft cannot push his legislation through as quickly as he'd hoped he would, and that's one of the encouraging signs of the democratic process. In each of the [historical] instances that I know of, the resiliency of the issue of rights being paramount has won out over the issue of having to have security at the expense of rights.

"When the equilibrium is not being terribly disturbed, I think the tendency of the country is to go back and settle on liberty at the expense of security. But the challenge now is a new one, because we don't know how soon this is going to be altered."