Loss of liberty a timely Knight topic.

In the chaotic early days of the Civil War, Abraham Lincoln offered a challenge to Congress:

"The dogmas of the quiet past are inadequate for the stormy present," he said. "The occasion is piled high with difficulty, and we must rise to the occasion. As our case is new, so we must think anew and act anew.

"We must disenthrall ourselves, and then we shall save our country. We cannot escape history. We will be remembered, in spite of ourselves. The fiery trial through which we pass will light us down in honor or dishonor to the last generation. We shall nobly save, or meanly lose, our last best hope of Earth."

Mark Tushnet, a professor of constitutional law at Georgetown University; used these words of Lincoln in opening a Knight Center seminar, "Civil Liberties in an Age of Terror," December 4-6, 2002, at the University of Maryland. Although 140 years have passed since Lincoln spoke these words, they have considerable relevance to the situation in which this nation has found itself since the terrorist attacks of September 11, 2001.

The good folks at the Knight Center could hardly have selected a more timely or urgent topic for their annual editorial writers seminar. Symbolically recognizing the relevance and urgency of a debate over civil liberties vs. security; the center invited a record number of participants--32 editorial writers and one reporter. An impressive, balanced list of speakers included Tushnet; Stephen Schulhofer, a professor at New York University School of Law and author of The Enemy Within; James Dempsey, deputy director of the Center for Democracy & Technology; Paul Rosenzweig, a senior legal research fellow at the Heritage Foundation; and a high-level delegation from the U.S. Department of Justice that included Viet Dinh, assistant attorney general, Office of Legal Policy.

Others on the program were Yvonne Haddad, a professor at Georgetown University's Center for Muslim-Christian Understanding; Kate Martin, director of the Center for National Security Studies; and a high-level Senate Judiciary Committee staffer who spoke on background to editors about the USA Patriot Act and the administration's often-difficult relations with Congress.

The seminar provided an opportunity to focus on new laws and regulations that have given the government increased power to detain, investigate, and prosecute people suspected of involvement in terrorism. Most seminar participants had analyzed these initiatives individually. The seminar enabled them to reflect on the collective justification for these changes as well as the potential effectiveness and impact on the liberty and privacy rights of citizens and foreign nationals in this country.

Early in the seminar, editorial writers humorously began prefacing comments by identifying themselves as "very alarmed," "alarmed," "mildly alarmed' or "hardly concerned" about the extent to which the government's new powers had skewed the balance between liberty and security.

Speakers fell into the same categories. National Journal columnist Stuart Taylor Jr. accused civil libertarians (and like-minded editorial writers) of crying wolf and misrepresenting the government's initiatives, which he argued have been far milder and less intrusive than those of past administrations in times of war. Dempsey and Schulhofer, among others, questioned the extent and efficacy of the counterterrorism initiatives. Schuhofer lamented what he called "distressing instances of September 11 opportunism" in which investigative powers and executive branch powers unrelated to terrorism had been expanded and traditional checks and balances, such as judicial review, had been diminished or eliminated.

If anything approaching a common concern emerged among seminar speakers (with the obvious exception of the Department of Justice officials and their staunchest supporters), it focused on the administration's detention of Yasser Esam Hamdi and Jose Padilla. The two Americans had been labeled "enemy combatants" and denied rights thought to be fundamental to American citizens.

The Padilla case emerged as a focal point of discussion at the seminar, given the timing of a federal judge's ruling affirming support for the president's authority to jail U.S. citizens as "enemy combatants" and asserting the court's right to review the propriety of Padillas' detention.

During their meetings with editorial writers, Dinh and other Justice officials depicted the court's ruling as a vindication of the administration's position that the president has broad wartime powers to hold individuals indefinitely without a court's review. Other speakers argued that the government's treatment of Padilla is an unhappy precedent that illustrates a fundamental, frightening shift of power to the executive branch since the 2001 attacks.

It was a debate--like the many others that boiled up during the three days of the seminar--that recalled the words of Lincoln: "The occasion is piled high with difficulty, and we must rise to the occasion."

Paul Neville is an associate editor at Register-Guard, Eugene, Ore, E-mail [e-mail]