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January 01, 2006

Introduction: Essential Choices

by Barry Sullivan and Penny Wakefield

At the ABA Annual Meeting last August, IRR’s Bill of Rights Project convened a diverse panel of distinguished lawyers from this county and abroad to discuss the impact of the “war on terrorism” on our governmental institutions and national identity. The panel looked both inwardly and outwardly, considering the consequences of the “war on terrorism” not only for the guarantees of individual liberty and separated powers that mark our system of constitutional government, but also for our own sense of national purpose, and for the sense that others have of us as a nation. We long have considered ourselves “as a City upon a Hill, [with] the eyes of all people… upon us.” We have aspired to be a model for the rest of the world in practicing government as a free people according to law.

Given the clear need for increased vigilance in maintaining the security of the nation against terrorism, the panel considered whether it is still true, as Justice Jackson said in the run-up to the Cold War, that ‘[t]he choice is not between order and liberty, [but] between liberty with order and anarchy without either.” What value do we see today in the Bill of Rights, the “great writ” of habeas corpus, trial by jury, an independent judiciary, and freedoms of speech, though, religion, and association? What is their price? Are our contemporary concerns so different from those voiced since the days of Montesquieu and Locke, the Massachusetts Constitution of 1780, and the Federalist Papers? Or has all “changed, changed utterly,” since the events of September 11, 2001?

Skepticism, even mistrust of governmental power and insistence upon citizen’s rights is peculiarly American. No sooner had the framers completed their initial work than they added the first ten amendments “to prevents misconstruction or abuse of [the government’s] powers” and to “extend … the ground for public confidence in the Government [… to] best ensure the beneficent ends of its institution.” And questioning government actions long has been at the core of American politics. But “9/11” – our only recent experience with “war” on home ground – has presented a new challenge to protecting individual liberties while also preserving national order.

The Bill of Rights Project was established in 1999 to increase awareness of the need to protect individual liberties against new threats, many f which were the product of new technologies or cultural changes. But “freedom of speech, association, and religion,” “reasonable search and seizure,” “right to counsel,” “privacy,” “equal protection,” and “due process” have taken on new meaning since 9/11. These freedoms remain critically important in their traditional contexts, but they also have taken on new and even greater importance in the context of fighting terrorism, when the government often “needs to know” about individuals, their movements, their conversations, and their friendships and acquaintances; when constraints are imposed upon counsel; and, ultimately, when the government may reject the validity of constraints customarily placed upon its action and thought to be the hallmark of free people.

For the 2005 Section Annual Meeting program in August and this follow-up issue of Human Rights, the project therefore invited several commentators to help place the “war on terrorism” in historical, legal, and public policy perspective and to consider our role as lawyers in helping maintain “liberty with order” in admittedly dangerous times.

Although the Section’s Annual Meeting panelists and this issue’s authors are diverse by background and politics, their comments reveal a remarkable confluence of opinion on many issues.

They agree that the tension between the demands of order and liberty in a free society may seem more immediate sine 9/11, but also that the tension has long been felt and likely will continue for as long as republican government endures. Terrorism – organized violence for political ends – also has a long history. Yet, as one panelist pointed out, our nation generally has responded to threats and fears by restricting liberty in ways that we have later considered excessive.

That said, this current struggle is different from others. The information age has worked to the advantage of “terrorists.” Employing technology available to all of us, they are bound closer by ideology while unhampered by distance or geography. And we have to rethink our terms of engagement, from “war” itself (rhetorical? literal? symbolic? legal?) to “battleground,” “enemy” (“enemy combatant”), and “torture.”

Such changed circumstances and redefinition have profound legal implications, several panelists suggested.

What established rules of war (and existing laws) apply when a “war” Is not, like past wars, a war among and between nations? If a president, as commander in chief, may justly claim expanded powers in times of war, how do we maintain the constitutional balance of powers in our government throughout a war that could extend beyond our lifetimes? How do Congress and the courts fulfill their constitutionally mandated oversight responsibilities? If the “war on terrorism” is global, encompassing the interstices of this country and others, what checks exist on military actions against alleged terrorists in “covert actions” abroad or against civilians domestically in the name of “global war”? How do we ensure the secrecy and security of intelligence gathering necessary for national security while minimizing the danger to liberty? Can - or should - legislation address such concerns?

What do such questions imply for citizens’ rights and the structure of government under the Constitution, the Bill of Rights, and the rule of law? Do we believe, one panelist asked, that the Constitution authorizes our government to have the military seize an American citizen on American soil, transport him to a military facility without notice to anyone he knows, and hold him indefinitely without trial, access to counsel, or judicial review, simply on the executive branch’s unproven, albeit sincere, judgment that he is an “enemy combatant”?

We should be asking, one panelist suggested, how to fight terrorism without changing who we are. We do that best, others said, by following processes that exemplify our commitment to the rule of law, our own democratic principles, and international human rights principles. But we would also do well, as Justice Jackson reminded us, to remember that the Constitution is not “a suicide pact.” It is a great charter of self-government “intended to endure for the ages to come and … to be adapted to the various crises of human affairs.”

In recent months, the discovery of “secret courts” and domestic electronic eavesdropping, reports of “extraordinary renditions,” Congress’s reauthorization of the USA PATRIOT Act, and the U.S. Supreme Court’s denial of Padilla v. Rumsfeld have fueled concern and debate about the durability and efficacy of out constitutional arrangements. By summer, the Court, and perhaps the military commissions in Guantanamo, will have made additional decisions that may enhance or alter the debate. Out job as lawyers and as “keepers of the rule of law,” panelists and authors agreed, is to help our nation “get it right.” Perhaps nothing can better ensure the future of the Bill of Rights.

As published in Human Rights, Winter 2006, Volume 33, Number 1, pp.1, 23.


Barry Sullivan is a partner with Jenner & Block LLP in Chicago. Penny Wakefield, a human rights lawyer in Washington, D.C., is a former Section Director. They are chair and vice chair, respectively, of the Section’s Bill of Rights Project.