Choice: Security or Civil Liberties

Some researchers have compared the impact of terrorist attacks, such as that of September 11, 2001 (9/11), with an earthquake because they occur without warning and have the possibility of subsequent aftershocks. The 9/11 attacks changed the U.S. government’s handling of terrorism into a “War on Terror.” In an effort to prevent any aftershocks, on October 26, 2011, the then president George W. Bush signed the USA PATRIOT Act (or the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) into law. This act was designed to increase the surveillance and investigative powers of law enforcement agencies in the United States in an effort to combat terrorism. The act, which received near-unanimous support in both houses of Congress, extends to 342 pages and references other surveillance laws, including the Foreign Intelligence Surveillance Act and the Right to Financial Privacy Act.

Public concern about terrorism follows a pattern whereby support for efforts to counter terrorist attacks increases following such an attack and decreases as time passes without another attack. Research conducted after the passage of the PATRIOT Act indicated that the U.S. public had strong positions toward it, with 90% of respondents either in opposition or in support. The split in support seemed to come down to a debate about safety versus civil liberties or, more precisely, a trade-off between civil liberties and personal security, which has continued to the present time.

Shortly after 9/11, members of Congress endorsed the idea of some form of national identification system as a way to fight terrorism. A number of national polls conducted after 9/11 showed that more than two thirds of Americans expressed support for a national identification card. This raises the issue of a trade-off between security, privacy, and convenience. Civil liberties groups raised concerns about national identity cards on the grounds that they could facilitate information sharing among government agencies and increase police power; other critics argued that any security benefits that would come from a national identification system are outweighed by threats to civil liberties, such as overzealous surveillance.

The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures, and in light of the National Security Agency’s (NSA) data mining program that seeks to identify terrorist networks through telephone and email records, many citizens have been questioning what is meant by “unreasonable.” The U.S. Ninth Circuit Court of Appeals ruled in United States v. Choate (1980) that the U.S. Postal Service may record what is written on the outside of an envelope as there is no expectation of privacy with regard to this information. An envelope is placed in a public mailbox, picked up and read by a worker, read by workers sorting the mail, and read and delivered by another worker. However, what is in the letter is private information.

In 1979, the U.S. Supreme Court made virtually the same point with regard to telephone records in Smith v. Maryland. The record of a telephone call (to whom a call is placed, from whom, and the length of the call) is not private information (think, the outside of an envelope) since it is shared with a third party (the telephone company), but the content of the conversation (think, the inside of the envelope) is private. On the one hand, this is what the NSA’s data mining program does, and supporters have argued that there is nothing constitutionally disturbing about seeking to identify terrorists through telephone pattern recognition. On the other hand, another NSA surveillance program, PRISM, is designed to read the emails of non-U.S. citizens outside the United States. Supporters of this program argue that reading other people’s email (or mail) to protect their citizens is what governments do—it is called espionage—and should a terrorist network in another country send an email to a potential recruit, our government would be derelict in its duty not to intercept it.

It is a truism that a society can neither have freedom without security nor have security without freedom. The ethics of making the choice between security and civil liberties comes down to balance. It is commonly understood that a society has to be safe, but questions remain as to how far a government should go, and how much will people tolerate, in the name of freedom. What concerns many people is not the constitutionality of programs designed to curtail civil liberties in the name of national security but the possibility of unethical behavior, and considering the power of government entities such as the NSA, any unethical behavior could have drastic effects on citizen’s civil liberties.

The ethical choice, then, involves balancing proper safeguards with the existence of such security programs. Rather than abolishing programs aimed at national security entirely, advocates have proposed tightening these programs with the following safeguards: (a) stricter congressional oversight, (b) periodic legislative reauthorization, (c) judicial review, and (d) independent outside review. In addition, they call for programs that measure and examine the effectiveness of these safeguards vis à vis the external threat.

Yet there are those for whom no compromise can be made. Rather than trying to balance safeguards with these programs, they call for the complete elimination of safeguards. Their argument is that civil liberties need to be protected at all costs: If the government is allowed to justify the curtailing of some liberties in order to keep its citizens safe, then it will only be a short time before they justify curtailing all liberties for the same purpose.

P. J. Verrecchia

See also Bill of Rights ; Civil Liberties ; Civil Rights Movement ; 9/11 ; Terrorism