Liberty and security.

Security and liberty are not locked in a zero sum game. Depriving liberty does not necessarily enhance security; indeed, the opposite is often true. For example, the mistreatment of prisoners at Abu Ghraib will surely weaken our national security. Whatever intelligence gains we expected or achieved will be dwarfed in significance by the ill-will we have generated in the Islamic world.

Next year will be a time for reassessing the nexus between liberty and security. Key provisions of the Patriot Act--including the authority to subpoena library, medical and other records--sunset on December 31, 2005. Thus, legislative action is almost certain. The Supreme Court's recent decisions on the detention of enemy combatants may also spur congressional action.

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As we address issues of liberty and security, there are important questions we should ask. First, does the proposed government action enhance our security? It is now universally acknowledged that one of the most egregious infringements of civil liberties in our history--the World War II internment of over 100,000 Japanese immigrants and their American children--served no security objective. The recent U.S. registration program for males from certain Muslim countries (NSEERS) also seems to have served no useful security purpose and has now been partially suspended. Programs directed at Muslims in the United States may actually harm national security by discouraging cooperation from Muslims at home and alienating Islamic communities abroad.

Second, are there ways to minimize the impact of security measures on our civil liberties? The government has argued that it requires subpoena power over libraries because some terrorists use library facilities to access e-mail and the Internet. But the government already has separate authority to obtain records from entities, including libraries, which act as internet service providers (ISPs), and has not adequately explained why, absent probable cause of a crime, it also needs to obtain library lending records.

Third, is the government restricting judicial or legislative oversight? Such restrictions remove the checks and balances that protect against infringements of civil liberties. One of the major complaints against the Patriot Act is that it reduces judicial oversight of government searches and surveillance.

Fourth, is the government reducing public access to information? Secrecy is sometimes justified, but as Justice Louis Brandeis noted, "sunlight is the best disinfectant." After 9/11, the government detained hundreds of immigrants without revealing their names, and then deported them in closed hearings. The Justice Department Inspector General has detailed the abuses to the detainees that such secrecy enabled. Moreover, the right of all Americans to know what their government is up to was infringed.

Reconciling the needs of security and liberty is not easy. Still, we have a far better chance of adopting sensible policies if we ask and demand answers to the right questions.

VOTER LINKS

* www.constitutionproject.org

* http://www.lwv.org/join/justsociety/civilliberties.html

BY JOSEPH ONEK

Senior Counsel and Director, Liberty and Security Initiative, The Constitution Project