PrettyFakes

the third of a series of articles for the newspaper of my school. my friend & colleague s.n. provided the conservative counterpoint that follows.

THE POINT

“We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.” Those words were not written after the horrors of September 11, or to urge passage of the Patriot Act, but in Hirabayashi v. U.S., 320 U.S. 81, 99 (1943).

They were written to describe how it was legal to convict an American citizen for failure “to register for evacuation” and to voluntarily go to the concentration camps the United States set up during World War II. Id. at 84. You see, even though Gordon Hirabayashi was born in Seattle, had attended public schools, and was a senior at the University of Washington, Congress decided he was a major threat to our country, for Mr. Hirabayashi’s parents were from Japan. Id.

During that time period the United States authorized that an estimated “120,000 people, including 70,000 American citizens, [be] deported to ten relocation camps scattered across the West.” Dean Masaru Hashimoto, The Legacy of Korematsu v. United States: A Dangerous Narrative Retold, 4 Asian Pac.Am. L.J. 72, 75 (1996). Our actions during that time period were a shocking deviation from the very backbone of our country—our freedoms and rights as enumerated in the Constitution. We intentionally limited the freedoms of others because we were scared.

There’s a lot to be scared of in the world after 9/11. However, in these times of trouble we must be very careful to remember exactly who and what we are, and how we got to this point. Court cases and political rhetoric cannot do that, but the writings of those who helped craft our freedom can. We must remember that we so loathed the treatment of civilians by British soldiers that we addressed it in our Constitution, providing that “[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war . . . ” U.S. Const. amend. III. Yet the Patriot Act and other works of Congress and the executive branch would create “virtual” soldiers in our homes and communities, even to the point of encouraging citizens to spy on other citizens for suspected “terrorist” activities.

We must remember that at one time Americans were so wary of military overreaching that it could be written that “the people of America may be said to have derived an hereditary impression of danger to liberty from standing armies in times of peace.” The Federalist No. 26 (Alexander Hamilton). Yet we have lately granted unprecedented war-making and decision-making powers to the executive branch and to the military itself.

We must remember that in times of great tribulation we have survived, and thrived, because of our freedom. In the very earliest days of our country, back in the days when even our leaders still considered us an “experiment,” Thomas Jefferson boasted that he might “err in [his] measures [as President], but never shall deflect from the intention to fortify the public liberty by every possible means.” Letter from Thomas Jefferson to Judge John Tyler (June 28, 1804), in Thomas Jefferson Writings 1147 (Merrill D. Peterson, ed., Library of America 1984). In his first inaugural address in 1801, Jefferson called the United States “the world’s best hope,” and the only place in the world “where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern.” Louis H. Pollak, The Constitution as an Experiment, 123 U. Pa. L. Rev. 1318, 1340 (1975).

We have failed that great standard before. Even the mighty Abraham Lincoln “suspended habeas corpus and began trying Americans in secret military courts when it looked as if Confederate sympathies might spread too deeply in the North” during the Civil War. 687 Micah Herzig, Is Korematsu Good Law in the Face of Terrorism? Procedural Due Process in the Security Versus Liberty Debate, 16 Geo. Immigr. L.J. 685, 687 (2002). Yet there has never been any proof that any restriction on freedom truly served its alleged compelling governmental interest: to protect us from harm. There is no evidence that shows the Patriot Act or any legislation would have prevented what happened that day in September.

Restrictions on our freedom cannot, and will not, stop the actions of terrorists. We must train our law enforcement agencies to ferret out those who would harm us, but we cannot grant them abilities that compromise our rights. We must remember that our freedoms are not a threat to our safety, but are a two-hundred and fourteen-year-old shield that must be nurtured and honored. These extraordinary times call for our extraordinary efforts.

THE COUNTERPOINT

The Patriot Act, passed in response to the September 11th terrorist attacks, has sparked much debate. While the related constitutional and philosophical issues can become quite complicated, this whole controversy seems ultimately to be resolved in the following simple idea: extraordinary times call for extraordinary measures. This maxim comports with common sense and should appear intuitive to many readers of this article. To phrase it more specifically to this issue: temporarily suspending the civil liberties of certain individuals is permissible when done in order to preserve the civil liberties of all.

The Supreme Court has recognized this principle at least in dicta and also arguably by implication. In U.S. v. Montoya de Hernandez the Court declared, “The permissibility of a particular law enforcement practice is judged by ‘balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” 473 U.S. 531, 537 (1985) (citations omitted). Articulating a balancing test here provides by implication clear justification for extraordinary measures in light of extraordinary circumstances. The weight of the governmental interest determines the permissible scope of the intrusion. In the case of our War on Terrorism, the government interest is preventing another attack that results in the loss of thousands of civilian lives and billions of dollars. The Patriot Act’s allowable intrusion upon the civil liberties of a few individuals thus balances easily against the governmental interests at stake.

Moreover, the Supreme Court has mentioned terrorism and threats of terrorism specifically as possible exceptions to general rules proscribing certain law enforcement practices that suspend individual civil liberties. In City of Indianapolis v. Edmond the Court invalidated a local law enforcement practice of maintaining vehicle checkpoints for the purpose of general crime control when no individualized suspicion of wrongdoing was present. 531 U.S. 32 (2000). Interestingly, however, the Court pointed out, “[T]here are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, . . . the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” Id. at 44 (emphasis added). Notice that the court declares it as a near certainty that the Fourth Amendment can accommodate emergency measures that might otherwise violate the Amendment, and notice further that the specific emergency given as illustrative is “an imminent terrorist attack.” Id. Thus, in the context of the Fourth Amendment the Court has stated that prevention of terrorism is a goal that may justify the infringement of certain civil liberties.

The Court has also noted terrorism as an illustrative exception to certain protections under the Due Process Clause of the Fifth Amendment. In Zadvydas v. Davis, the court declared that the Attorney General may not indefinitely detain an alien ordered removed, even though the countries sought for removal refuse to admit the detained alien. 533 U.S. 678 (2001). However, the Court stated, “[W]e have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections . . . The provision [in the instant case] authorizing detention does not apply narrowly to ‘a small segment of particularly dangerous individuals,’ Hendricks, supra, at 368, say suspected terrorists . . . .” Id. at 691. Notice here that the Court classifies “suspected terrorists” as “particularly dangerous individuals” that may be excepted from certain protections of the Due Process Clause. Id. We see then that the Court has recognized, in dicta at least and implicitly, that civil liberties guaranteed by the Fourth and Fifth Amendments may be suspended in light of the threat of terrorism.

Therefore, while a discussion of the particulars of the Patriot Act are beyond the scope of this article, in light of the foregoing one thing appears certain: insofar as the Act grants extraordinary powers in light of these extraordinary circumstances, the Act is unobjectionable. The cost to a few individuals of suffering a temporary deprivation of their civil liberties pales in comparison to the costs suffered by the thousands of victims and families of victims of September 11th and other terrorist attacks. Law enforcement must be equipped to do its job in order to prevent another similar attack. Extraordinary times call for extraordinary measures.

This entry was posted on Saturday, April 26th, 2003 at 5:22 pm and is filed under Gorjus, In the Nation, Law & Jurisprudence. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.