chapter_4_civil_liberties - Rights Liberties and Security...

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THURSDAY SEPTEMBER 11, 2008 WINTER 2003 — RELATED CONTENT RESEARCH AND COMMENTARY Terrorism and the U.S. Criminal Justice System Larry D. Thompson, Keynote Address, American Board of Criminal Lawyers, 25th Annual Dinner, 12-Oct-03 RESEARCH AND COMMENTARY One More Seat at the Table Parag Khanna, The New York Times, 6-Dec-03 RESEARCH AND COMMENTARY Can the Government Be Serious? September 11 Challenges Washington to Return to Its Core Responsibilities Pietro S. Nivola, The Brookings Institution, Winter 2003 More Related Content » Rights, Liberties, and Security: Recalibrating the Balance after September 11 Terrorism, Governance, Crime Stuart Taylor, Jr., Nonresident Senior Fellow, Governance Studies The Brookings Institution When dangers increase, liberties shrink. That has been our history, especially in wartime. And today we face dangers without precedent: a mass movement of militant Islamic terrorists who crave martyrdom, hide in shadows, are fanatically bent on slaughtering as many of us as possible and—if they can—using nuclear truck bombs to obliterate New York or Washington or both, without leaving a clue as to the source of the attack. How can we avert catastrophe and hold down the number of lesser mass murders? Our best hope is to prevent al-Qaida from getting nuclear, biological, or chemical weapons and smuglling them into this country. But we need be unlucky only once to fail in that. Ultimately we can hold down our casualities only by finding and locking up (or killing) as many as possible of the hundreds or thousands of possible al-Qaida terrorists whose strategy is to infiltrate our society and avoid attention until they strike. The urgency of penetrating secret terrorist cells makes it imperative for Congress—and the nation—to undertake a candid, searching, and systematic reassessment of the civil liberties rules that restrict the government's core investigative and detention powers. Robust national debate and deliberate congressional action should replace what has so far been largely ad hoc presidential improvisation. While the USA-PATRIOT Act—no model of careful deliberation—changed many rules for the better (and some for the worse), it did not touch some others that should be changed. Carefully crafted new legislation would be good not only for security but also for liberty. Stubborn adherence to the civil liberties status quo would probably damage our most fundamental freedoms far more in the long run than would judicious modifications of rules that are less fundamental. Considered congressional action based on open national debate is more likely to be sensitive to civil liberties and to the Constitution's checks and balances than unilateral expansion of executive power. Courts are more likely to check executive excesses if Congress sets limits for them to enforce. Government agents are more likely to respect civil liberties if freed from rules that create unwarranted obstacles to doing their jobs. And preventing terrorist mass murders is the best way of avoiding a
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