No Checks, No Balances: Discarding Bedrock Constitutional Principles
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Description
IAs expected, September 11 has prompted an expansion of law enforcement powers at almost every level. The domain of individual rights has contracted. And who would have it otherwise? For those of us who live and work in Manhattan, September 11 was not just a single horrific day but an extended nightmare. For weeks, kiosks, store windows, and parks displayed flyers by the thousands, pleading for information about loved ones still missing. National Guard units seemed to be everywhere. Day after day, the air, gray and acrid, carried the smell of burning flesh. No, the “war” metaphor is not just convenient political spin. And despite shameless hyping of so-called sleeper cells and color-coded threat levels, no responsible person can dismiss the danger of devastating future attacks. Actions to strengthen law enforcement are not simply the product of panic or paranoia. But the particulars are troubling—and worse. Predictably, there has been overreaction and political grandstanding. More surprising is the neglect. Inexcusably, the administration of George W. Bush has swept aside urgent security needs while it continues to win public acclaim for toughness by targeting and scapegoating civil liberties. An accounting of the state of our liberties should begin with the positives. To his credit, President Bush has preached tolerance and respect for our Muslim neighbors. Unlike previous wartime governments, this administration has not sought to prosecute dissenters for political speech, has not attempted anything comparable to the internment of Japanese Americans during World War II, and (technically, at least) has not tried to suspend the writ of habeas corpus. But to measure performance by these standards is to set the bar terribly low; these were sorry historical embarrassments. And 9/11 has already produced several comparable missteps. The administration's efforts to stymie habeas corpus rival the civil liberties low points of prior wars, as does its determination (wholly without precedent) to hold American citizens indefinitely on disputed charges without affording them a trial in any forum whatsoever. Likewise without precedent are the oddly imbalanced means chosen to fight this war. Never before in American history has an administration claimed emergency powers while stinting on urgent national security expenditures and making tax cuts its top wartime priority. Conventional wisdom about “striking a balance” between liberty and security obscures the fact that responses to 9/11 are deeply flawed from both perspectives. Specifically, the domestic security policies of this administration encroach on three principles that are fundamental to the preservation of freedom: accountability, checks and balances, and narrow tailoring of government's power to intrude into the lives of citizens. In each case, the administration has overlooked or dismissed alternative approaches that would strengthen the nation's security at least as effectively without weakening fundamental freedoms. The encroachments on bedrock principles, altogether unnecessary even in this perilous time, are especially evident in four realms of policy: domestic surveillance, new guidelines governing the Federal Bureau of Investigation, the detention of foreign nationals, and the erosion of habeas corpus.
Source Publication
Civil Liberties vs. National Security in a Post 9/11 World
Source Editors/Authors
M. Katherine B. Darmer, Robert M. Baird, Stuart E. Rosenbaum
Publication Date
2004
Recommended Citation
Schulhofer, Stephen J., "No Checks, No Balances: Discarding Bedrock Constitutional Principles" (2004). Faculty Chapters. 1381.
https://gretchen.law.nyu.edu/fac-chapt/1381
