2002-02-26T12:48:00.000-08:00

Attacks on Civil Liberties

What does the expression "civil liberties" mean? A lot of newsprint has been devoted to the concept of "civil liberties," or, more precisely, our loss of them, proximately caused by the "War on Terrorism." However, most of these articles do not bothered to define them, and, more importantly, their source. Thus, it is difficult to put the "threat" to our "civil liberties" (and, more crucially, how we should respond to this threat) into proper context. Are these "civil liberties" the ones guaranteed by the Constitution (either by a defensible argument from the text of the Constitution or by a recent (or vintage) Supreme Court opinion? Or, are these civil liberties merely things we have come to take for granted in times of peace, but are by no means guaranteed by law or the Constitution?

The answers to the above questions are crucial; in a time of war, one expects the citizenry to make sacrifices to advance the common good (in this case, infringement on individual autonomy and certain privacy in exchange for security in the homeland). For instance, no one got upset by the inconvenience foisted upon commuters when stringent carpooling requirements were enacted to cross through the Lincoln Tunnel. There is no right to drive a car, or to pass across through a tunnel at an alotted time with no passengers. Although forcing people to cross a tunnel at an alotted time with a certain number of people is inconvenient and interferes with our liberty to move freely from place to place within the United States (a guaranteed right in the Constitution). So, if the "civil liberties" threat at issue resemble something like this example, why are we up in arms?

The only persuasive analysis of the question I have encountered was by Laurence Tribe in The New Republic. Specifically, he addressed the constitutionality of Bush's military tribunal proposal. Although there was much criticism of the proposal offered by Tribe, he did not go so far as to suggest that the tribunals were unconstitutional. Indeed, he suggested the opposite by noting that the Constitution is not a suicide pact, and contains the flexibility necessary to defend the country against an enemy from within. Thus, for all of the flaws Tribe identified with Bush's military tribunal proposal, he was unable to dismiss the idea of military tribunals as volating a sancrosanct constitutional principle. Tribe is a smart guy and no friend of Bush. And yet, even he could not identify a constitutional principle at stake with a proposal that caused much wailing from the professional pundit/lobbyist class.

So, I ask, what are the civil liberties that are threatened by our response necessitated by the "War on Terrorism," and what should be our level of outrage? It strikes me that the source of the outrage comes from professional complainers, who strike poses as defenders of liberty but write more like pamphleteers than scholars, or even lawyers. Is their level of outrage justified?

Frankly, I don't know the answer to this question, nor do I have the time to do the requisite research necessary to figure out the answer. So, I post this question in search of responses to the question. My sense is, however, that the lack of any coherent definition of "civil liberties" (or, more specifically, the lack of identification of the source of the liberty [i.e., the Constitution]) is proof that there is no there there, despite the fury over this supposed hijacking of our rights.

Lawyer