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Responding to Terrorism Symposium September 13, 2001
Seth Kreimer is a Professor in the Law School who is an expert on constitutional law and civil liberties and individual rights. He is a member of the Board of the American Civil Liberties Union and consults for organizations such as the Lawyers Committee for Civil Rights under Law, the Mayor's Committee on the Homeless, the Juvenile Law Center and the Women's Law Project. Professor Kreimer is the winner of numerous teaching awards including the Lindback Award for Distinguished Teaching at Penn. Protecting Liberty Friends, we come together at a time when our society has been horrified by an attack on the United States, unprecedented in my lifetime, almost unprecedented in our history. America has been wounded; we mourn, we rage, we demand a response. I have no doubt that our response will and should come, and when it comes it will and should be forceful, sustained and effective. My hope in these minutes is to raise with you the concern, rooted both in my commitment to our constitutional values and in my study of our constitutional history that America's defense should not come at the cost of the very ideals that make it worth defending. Let me briefly address three sets of concerns arising out of our commitments to equality, to liberty and to individual dignity. America is a nation of immigrants, and a nation as Lincoln said, "dedicated to the proposition that all are created equal." Yet in time of war there is a temptation to forget this dedication. When the enemy is faceless, we are tempted to see the enemy's face in those who resemble him. It is alluring to group people, to say there is no time to deal with them as individuals and to condemn them wholesale. Those who perpetrated the barbarities of September 11 made no nice distinctions among their victims; it is inviting to say that in time of war we should make no nice distinctions either. And, there is another often subconscious dynamic: when our anger demands vengeance it is tempting to take that vengeance vicariously on those who resemble the perpetrators. Sadly, America has been down this road before. In the months after the attack on Pearl Harbor, impelled by fear of imminent invasion and anger at barbarous attack and the belief that there was no time to make nice distinctions the American military rounded up 120,000 Americans of Japanese origin and imprisoned them in internment camps. The claim, accepted by the Supreme Court in Korematsu v. US (1945) was that by virtue of their ethnic origin, the military could predict that some of these Americans were likely to pose a danger of disloyal action and that "under conditions of modern warfare when our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger." Yet even at the time, there was a sense by some that our freedom had been overwhelmed by our fear; as Justice Murphy's dissent pointed out, the official report justifying the detention announced in part that "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." That sort of logic persuaded Justice Murphy that the military had gone "over the brink of constitutional power and into the ugly abyss of racism". Time has vindicated Justice Murphy; in 1988 Congress passed a statute officially apologizing to the survivors of the internment and awarding them reparations. There is reason to hope that we will not need to apologize for our behavior in today's crisis; for we are a more tolerant society and truer to our ideals of equality than we were in 1942. Our allegiance to the obligation to treat each individual with equal respect, to reject the imposition of ethnic stereotypes is announced by attacks on racial profiling from the left and by attacks on racial preferences from the right. Those announcements provide guidance when we are tempted to turn on our fellow Americans, to bar them from jobs or public transportation or free movement for reasons of " security." So on this front I am hopeful. America is also a nation as Lincoln said "conceived in liberty". Freedom to differ, freedom to criticize, freedom to call the government to account has stood at the root of our self-conception. Yet in time of war, it is all too easy to equate difference with disloyalty, to sacrifice dissent and free information on the altar of military necessity. We have already heard calls to curtail the flow of information to the public on pain of criminal prosecution, and we will doubtless hear suggestions that those who associate with critics or dissidents should be shamed or shunned or surveilled or controlled. The difficulty, as Justice Powell observed during the Vietnam war is the "tendency of government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies." We cannot always rely on the courts to save us from ourselves in this regard. During the Civil War, Americans were imprisoned without trial for criticizing military strategy; during World War I Americans were prosecuted for questioning the motives of their leadership or the legitimacy of the draft; during the Cold War and McCarthyism, Americans were denied employment because of their associations and investigated for their beliefs. Yet here, too we may have advanced as society, for we are more open and have more faith in our resilience than we did a century ago. And, amid the judicial failures in war time, we also have landmarks that guide us to our principles. In 1943, in the midst of America's struggle for survival in World War II, the West Virginia Board of Education demanded that every child begin the day with a flag salute. When the Barnette family out of their principles as Jehovah's Witnesses refused they found themselves haled into court, in a case that ultimately reached the Supreme Court of the United States. Justice Robert Jackson, the former Attorney General, acknowledged the importance of patriotism in time of war, but held for the Barnettes. His words are worth recalling. He said: There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. .... When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,nationalism, religion.... If there are any circumstances which permit an exception, they do not now occur to us. The temptations to curtail the freedom of speech and association that makes democracy work in the coming days will not come from ignoble motives. They will come from fear and a properly high concern for the safety and future of our country. But good motives are not enough, and there is reason to hope that we will remember Justice Robert Jackson rather than Senator Joseph McCarthy. In the modern era, our regard for freedom to differ has protected protesters who burn the American flag, notwithstanding the costs to patriotism just as it has protected Boy Scouts who exclude gay leaders notwithstanding the costs to equality. We have sustained these costs and grown as a society; when we are asked to trade liberties of speech and association for the perceived necessities of the coming days I am optimistic that we will remember that we can sustain costs in order to retain our freedom. Finally, let me say a word about privacy. Seventy years ago, in the midst of Prohibition, American authorities struggled against what was perceived as a widespread, covert and insidious evil: the illegal sale of liquor. In response, they deployed what was then a modern investigative technique: the wiretap. Justice Louis Brandeis --dissenting at the time--did not dispute the proposition that the wiretaps were effective, he raised questions however about the degree to which America's constitutional order permitted them to be deployed without judicial oversight. As he put the matter, The makers of our Constitution....recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, theright to be let alone--the most comprehensive of rights and the right most valued by civilized men. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Today, the threats with which we struggle make the dangers of the speakeasy or gin mill quaint, and Justice Brandeis' choice seems in retrospect an easy one. By contrast, the dangers we face from terrorism go to the root of civilized society. If we cannot go to work without fear of fire from the sky, our right "to be let alone" will be of little value. Yet the investigative resources at the disposal of the government today dwarf the capacities of the government in Justice Brandeis' time, and it seems to me that we must take care with the structures we put in place in response to this crisis, for we will live with them for years into the future Whatever sacrifices we make must be measured ones, and as Justice Powell put it in rejecting the claim of President Nixon for an uncontrolled right to wiretap in the interests of national security "the price of unlawful public dissent must not be a dread of subjection to unchecked surveillance." We have been attacked and that attack has been made easier by the openness of our society; we have been put in fear and that fear is more difficult to dispel because of our idealism. But that openness and that idealism are the basis of our strength and our hope; we must not purchase today's peace of mind by abandoning the liberty of our future. Back
to SAS Symposium on Terrorism Introduction
Almanac, Vol. 48, No. 4, September 18, 2001 |
ISSUE HIGHLIGHTS: Tuesday,
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