Democracy and Homeland Security: Strategies, Controversies, and Impact

Part I. Papers Presented in Panels 1–4

Homeland Security and Democracy in the United States During the War on Terrorism

Paul Haridakis, Kent State University

Editor’s note: This chapter is a review of panel 1 of the Symposium on Democracy and Homeland Security, with presenters Mary Stansbury, Polycarp Ikuenobe, and Judith A. Youngman. Each presentation appears as a chapter in this e-book.


Since September 11, 2001, there has been a great deal of discussion regarding the impact of government initiatives (e.g., USA PATRIOT Act, Homeland Security Act) aimed at combating terrorism and preserving homeland security. Members of the panel titled “Providing Homeland Security and Democracy in the United States: Meaning and Practice” add valuable insights to this important debate. Youngman questions whether human rights and homeland security must be an either-or choice. Ikuenobe questions the use of patriotism to justify homeland security, as well as the effort to defend patriotism as a moral virtue. Stansbury discusses the important role of librarianship in the advocacy of First Amendment rights and growing civil society and governmental homeland security restrictions that are threatening librarians’ performance of those roles.

In this chapter, I place such arguments in the context of wartime within which the Homeland Security Act was passed. I suggest (as have others) that during times of war, such as the current war on terrorism, boundaries placed on individual rights in the United States in the interest of homeland security are much stricter than during times of relative peace. In addressing this topic and integrating the issues raised by the scholars mentioned, I discuss five overarching issues: the tension between civil liberties and homeland security, wartime deference to the executive branch, secrecy cloaking government action in the current war on terrorism, ethnocentrism, and representative ethical/moral considerations.


A week after the September 11, 2001, attacks on the World Trade Center and the Pentagon, Congress granted the president broad authority to take the action he deemed necessary to wage the “war on terrorism.”1 Within two months of the attack Congress also passed the USA PATRIOT Act,2 the president issued an order authorizing the use of military commissions to try alleged terrorists,3 and several executive branch initiatives ostensibly strengthened the government’s ability to fight the war and maintain homeland security.4 A detailed review of all such initiatives is beyond the scope of this chapter. But, as panelists Ikuenobe, Youngman, and Stansbury suggest, together the initiatives potentially alter the balance between civil liberties and homeland security. The shift in that balance toward emphasizing homeland security often occurs during wartime.

During times of war civil liberties in the United States have been treated differently.5 When homeland security and individual liberties are deemed to conflict during wartime, the general practice has been to err on the side of homeland security. In the next sections, I review very briefly a few representative examples in order to place the discussion in the context of a wartime atmosphere in which we find ourselves today. These examples reflect prior uncritical acceptance of an either-or choice between homeland security and civil liberties that Ikuenobe and Youngman suggest is occurring today.

Alien and Sedition Acts of 1798. Within a decade of adopting the Bill of Rights, the United States found itself in a dispute with France. In response, Congress passed the Alien, Naturalization, Alien Enemies, and Sedition Acts. Together, these four statutes provided for restricting citizenship; expelling aliens the president deemed dangerous to U.S. peace and safety; empowering the president to apprehend, restrain, and remove subjects of an enemy power; and punishing those who spoke out against the government.6

Civil War. During the Civil War, both the Union and Confederacy placed restrictions on various civil liberties. One often-cited example of a wartime restriction on civil liberties is President Lincoln’s suspension of the writ of habeas corpus7 in order to curtail antiwar protest and those recruiting for the Confederacy. He authorized military tribunals to try persons engaged in such disloyalty. The suspension of the writ of habeas corpus was intended to foreclose those tried before such tribunals access to civilian federal and state courts. In Ex parte Merryman, Supreme Court Chief Justice Roger Taney ruled that the suspension of habeas corpus was unconstitutional, in part because the president had exceeded his executive branch authority.8 The Supreme Court ultimately ruled that citizens, even during wartime, could not be denied access to civilian courts that were open and operating.9

World War I. During World War I, Congress passed the Espionage Act. It criminalized speech and other activity interfering with the war effort. This act, and a 1918 amendment to it,10 criminalized activities such as protesting the legality of the war and criticizing the draft. Numerous prosecutions occurred to quash political dissent, several of which were upheld by the Supreme Court.11

World War II and Its Aftermath. Just before the United States’ entry into World War II, Congress passed the Alien Registration Act.12 It was designed to punish speech that could be considered seditious. Although not used extensively during the war, it was used subsequent to the war to prosecute communists during the “McCarthy era.”13

In retrospect, perhaps the most notorious restriction on civil liberties by the United States during wartime was the internment of approximately 120,000 persons of Japanese ancestry during World War II. In Korematsu v. United States,14 the U.S. Supreme Court upheld the constitutionality of the internment upon reliance on the U.S. military’s claim that such internment was required by military necessity.

This discussion is not intended to suggest that all efforts taken to protect homeland security during prior times were improper or that we are running roughshod over civil liberties in the current war on terrorism. However, events such as those outlined above are reminders that civil liberties historically have been treated differently during wartime.

The War on Terrorism. Ikuenobe, in particular, frames his discussion of current events as a conflict between homeland security and liberal democracy. This is an appropriate frame because liberal democracies (due to the preeminence they place on individual rights) should have the most difficult task of preserving and defending civil liberties while at the same time maintaining national security.

Ikuenobe, Youngman, and Stansbury note various types of restrictions on individual liberties occurring in the current war on terrorism. These include, for example, authorization of the use of military tribunals; the detainment of individuals largely incommunicado in Guantanamo Bay, Cuba; various forms of electronic surveillance; limited judicial supervision of security agencies; enhanced government power to investigate noncitizens attempting to enter the United States; relaxed procedures for obtaining search warrants; strengthened deportation powers; restricting detainees’ access to legal counsel; monitoring financial transactions; and the like. The three scholars identify several issues relevant to the conflict between homeland security and democracy in the United States that, when placed in historical context, are strikingly similar to issues salient in prior wars. In the next sections, I highlight some issues explicitly or implicitly raised.

Wartime Deference to the Executive Branch and Individual Rights

In his chapter, Ikuenobe points out what should be obvious to us all: that the judicial and legislative branches in the United States are responsible for monitoring the legality of executive branch action, particularly that affecting individual rights. But during times of war, that system of checks and balances has not operated at its best. During wartime, the other branches of government have shown a propensity to defer to the president on issues of war and national security.

In the same way that President Lincoln convinced Congress to give him the authority to suspend the writ of habeas corpus during the Civil War,15 immediately after the September 11, 2001, attacks, President Bush received from Congress the authority to take all necessary action to conduct the war on terrorism. With the USA PATRIOT and Homeland Security Acts, Congress consolidated substantial power in the executive branch.16 Congress has been reluctant to require the executive branch to disclose information regarding its actions. For example, the USA PATRIOT Act discussed by the panel of scholars limited congressional oversight of executive branch action and permitted the executive branch to defer releasing intelligence reports to Congress if it felt that it could impede counterterrorism activities.17 The Homeland Security Act specifically exempted information provided to the Department of Homeland Security from disclosure that ordinarily would be mandated by the Freedom of Information Act.18

The judicial branch also has shown an inclination during the war on terrorism to defer to the executive branch without providing perhaps the degree of critical scrutiny Ikuenobe suggests is necessary in the current war. For example, the Third Circuit Court of Appeals recently ruled that the administration’s practice of conducting “special interest” deportation hearings in secrecy did not violate the First Amendment access rights of the press and public.19 These secret hearings have been conducted pursuant to a September 21, 2001, directive to all immigration judges that “special interest” cases (e.g., those involving persons the administration feels may have links to terrorists) were to be closed to the public and the media.20 Relying on little more than a declaration of potential concerns by the FBI, the Third Circuit Court of Appeals acquiesced to the executive branch argument that open deportation hearings posed a threat to national security.21

Such deference to the executive branch has not been an isolated event. In Hamdi v. Rumsfeld,22 the Fourth Circuit Court of Appeals overruled an order by a trial court requiring that the government grant the defendant unmonitored access to his attorney. The appellate court stressed that “in the context of foreign relations and national security . . . a court’s deference to the political branches of our national government is considerable.”23 Similarly, when called upon to review the government’s reluctance to disclose reasons for detaining people incommunicado and to detail how it classifies a person an enemy combatant in the war on terrorism, the Fourth Circuit Court of Appeals refused to require that the government articulate specific reasons for its actions.24

This inclination toward deference harks back to World War II, when the U.S. Supreme Court upheld the curfew25 and internment26 of persons of Japanese ancestry, including U.S. citizens, in reliance on governmental claims that the policies were justified by military necessity. It also is consistent with a World War I case in which the Court upheld the revocation of a newspaper’s mailing privileges because the views expressed allegedly were detrimental to the war effort and violated the Espionage Act.27

The Use of Secrecy in the War on Terrorism

The above-referenced decisions by the Third and Fourth Circuit Courts of Appeal highlight another implicit issue raised by Democracy Symposium panelists (referring here to some of the panelists generally): the tension between secrecy exercised in the interest of homeland security and individual liberties. Whereas several of the above-referenced initiatives taken in the war on terrorism enable the government to obtain information more easily, the government has been reluctant to share acquired information with the public.

There has been a significant cloak of secrecy shrouding much of the government’s homeland security practices. Ikuenobe cites several such executive branch practices that are conducted in relative secrecy, including detaining prisoners and interrogating them without attorneys. Both Ikuenobe and Stansbury also point out that the USA PATRIOT Act permits much secret activity on the part of government.

This is a troubling practice because, as Ikuenobe asserts, liberal democracies respect people as self-governing individuals. To that end, we have a tradition of public participation in the United States. That is one of the rationales for guaranteeing public access to trials, for example.28 The long tradition of protecting the public’s right to know what and how the government is performing also is reflected in the Freedom of Information Act, which gives us the right to obtain information from our government.29

That tradition of openness is what makes the idea of secrecy in the name of homeland security all the more disconcerting. The sequestration of information keeps it out of the hands of the people who need it in order to engage in effective self-governance.

Thus, all such secrecy must be viewed as suspect. As the Sixth Circuit Court of Appeals recently cautioned when addressing another challenge to the government’s practice of closing deportation hearings: “When government begins closing doors, it selectively controls information rightfully belonging to the people,” and “[d]emocracies die behind closed doors.”30

However, the government’s homeland security practices have been closing doors in a variety of contexts. For example, in addition to closing deportation hearings, in November 2001 the president authorized the use of military commissions to try alleged terrorist “enemy combatants” of the United States.31 The president’s order, and rules promulgated by the Department of Defense to govern the tribunals,32 provide that the trials, or portions of them, can be closed at the discretion of the government to protect national security. In addition, if a defendant has retained civilian counsel, that attorney can be excluded from portions of the trial dealing with classified information.33

Ikuenobe is particularly critical of the use of military tribunals, calling them immoral and discriminatory. Such a concern is heightened if they (and practices surrounding them) are conducted in secret.

The ability of the government to withhold reasons for detaining people incommunicado, trying them outside the public eye, and limiting information—when coupled with judicial branch deference to the executive branch on such issues—sets the stage for the executive branch to shift the balance unilaterally between individual constitutional rights and homeland security. The ability of citizens to perform the self-governing role generally expected of them may be adversely affected in such a climate.

Nonsecrecy: Forced Disclosure. In addition to government efforts to withhold information in order to protect homeland security, there also has been a practice during the current war on terrorism to force disclosure of information when the executive branch deems it necessary. For example, Stansbury asserts that librarians traditionally have been advocates for free speech in the face of government attempts to get information (e.g., fighting against censorship, maintaining confidentiality of patron records, defense of intellectual freedom). She notes, however, that the government has been using policy vehicles such as the USA PATRIOT Act to pierce that veil of protection by calling on libraries to disclose patrons’ records, monitor Internet use, and the like.

This is an important point. Most often, implications of government attempts to acquire information deemed to be private are discussed in terms of the Fourth Amendment’s protection of privacy. But Stansbury stretches our thinking. She suggests that there are First Amendment implications when the government seeks forced disclosure of information, in part because it can have a “chilling effect” on expression.

There is support for this notion that the First Amendment protects not only freedom of speech, but also freedom not to speak, at least publicly, when one does not want to do so. The U.S. Supreme Court has ruled in a variety of contexts that free speech principles embodied in the First Amendment protect the right of speakers to determine for themselves when their expression is private and when it is to be made public.34

One practice advocated by the executive branch in the war on terrorism that requires forced disclosure is the monitoring of attorney-client discussions. Effective October 30, 2001, the Justice Department announced an interim rule on preventing acts of violence and terrorism.35 The rule permits government monitoring of conversations between those charged or detained in the war on terrorism and their attorneys when the Justice Department feels it is necessary to prevent future acts of terrorism or violence.

One argument supporting such monitoring is to foreclose the use of counsel for terrorist activity.36 This is a legitimate concern. When attorneys are used either willingly or unwillingly in such a manner, their communication with their clients falls outside the attorney-client privilege. This exception to the privilege is embodied in Rule 502 of the Federal Rules of Evidence, which provides that “There is no privilege under this rule . . . if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.”

Although this “crime-fraud” exception to the attorney-client privilege can negate confidentiality in certain limited cases, the Supreme Court has ruled that only a court can determine whether the exception to the privilege may apply.37 The Justice Department rule is at odds with this precedent because it permits the executive branch, rather than a court, to make that determination for itself. Not only does the interim rule permit monitoring by the government (i.e., the entity holding the detainee), it is applicable to all persons in custody under authority of the U.S. attorney general. Thus, even detainees and material witnesses who have not been charged with a crime are subject to having their conversations with their lawyers monitored.

This poses significant civil rights concerns. For example, it has been noted that if someone is being scrutinized by the government, or worse, simply detained as, for example, a material witness, there may be a wide range of issues he/she would want to discuss with his/her attorney, including personal issues regarding work, the effect on his/her family, financial implications, and the like.38

Stansbury’s First Amendment argument also is relevant in the context of the government’s ability to force disclosure of grand jury evidence in the name of homeland security. Generally, grand jury evidence is confidential (requiring a court order for disclosure) in order to protect those who may be innocent of crimes and to encourage people to step forward with information.39 However, the USA PATRIOT Act amended Rule 6 of the Federal Rules of Criminal Procedure to permit disclosure of a variety of information potentially relevant to homeland security efforts.40 This is a fairly clear potential abrogation of safeguards on grand jury power.

These are just a few illustrative examples of information-handling practices of the government in the name of homeland security. Whether justified or not, these past actions evidence a wartime inclination on the part of the current administration to (1) use secrecy rather than public access as the rule rather than the exception, and (2) force disclosure rather than protect privacy at its discretion.


Another implicit, if not explicit, theme in the commentary of Ikuenobe, Youngman, and Stansbury is the need to guard against the specter of ethnocentrism in homeland security initiatives. Ikuenobe suggests early in his chapter that the current “effort to defend patriotism as a moral virtue . . . implies that patriotic citizens have a justifiable basis to be partial toward their country and its citizens, and discriminatory against others.” He condemns this effort as “tied to nationalism and xenophobia.” Youngman also argues against such thinking and outlines a more sensitive cultural relativist conception of human rights that places greater emphasis on dignity, autonomy, and respect for diverse groups.

Although I will not argue that current homeland security policies are inherently ethnocentric, nationalistic, or, in the extreme, xenophobic, these scholars suggest that we must at least be sensitive to the possibility that the meaning and practice of homeland security can encompass such thinking. The Sixth Circuit Court of Appeals in Detroit Free Press v. Ashcroft expressed this concern when it suggested that procedures for classifying and handling “special interest” deportation cases removed them from public view in order “to deprive non-citizens of their fundamental liberty interests.”41

The president’s order authorizing the use of military tribunals pertains specifically to the detention, treatment, and trial of particular noncitizens in the war on terrorism. We know that those whom the government classifies as enemy combatants have limited constitutional protections. This was determined by the U.S. Supreme Court in a World War II case, Ex parte Quirin,42 in which the Court upheld the authority of a military commission to try eight alleged Nazi saboteurs. In addition to lacking constitutional safeguards, the current administration has taken the position that enemy combatants lack international protections established pursuant to the Geneva conventions.43 Thus, if improperly classified, certain noncitizens detained in the war on terrorism could be denied the extraconstitutional protections Youngman suggests are necessary to protect human rights.

Accordingly, it has been argued that there needs to be a specific procedure to review the determination of enemy combatant status.44 Without that, the United States may run the risk highlighted by Ikuenobe of discriminating against noncitizens by denying them the protections of the legal system they would have but for their classification.

We also have to be wary of the vague definition of terrorism that may permit an overly broad application of the term to various activities that otherwise could be considered the exercise of individual rights (e.g., freedom of speech).45 This concern is echoed by Ikuenobe, who asserts that the U.S. attorney general’s “view implies that such detention and military tribunals are acceptable because foreign terrorists do not deserve the rights.” He compares their treatment to domestic terrorists such as Timothy McVeigh who have been accorded the protection of the U.S. legal system.

It should be noted, though, that there are indications that the administration is not necessarily engaging in intentional discrimination based on national origin. It is true that the president’s order does apply to noncitizens. However, U.S. citizens, such as Jose Padilla46 (referenced by Ikuenobe), are being detained along with noncitizens. On the other hand, alleged foreign terrorists such as Zacarias Moussaoui are being tried in federal courts, rather than before military tribunals.47

Nonetheless, Youngman questions why entities such as the European Union have taken greater strides to protect human rights than has the United States. She points out that the European Union has used its Charter of Fundamental Human Rights to supersede individual nations’ human rights protections. But, despite such laudable efforts, it also should be noted that the European Convention on Human Rights included a sweeping exception to the protection of human rights by providing that its human rights protections may be abrogated in times of war.48 Thus, although we have to guard against violating civil liberties during the war on terrorism, the European Union model may not necessarily offer a superior approach for protecting against human rights violations or other ethnocentric thinking and practices.


In addition to legal and political concerns pertaining to balancing homeland security and democratic principles of civil liberties, Ikuenobe, Youngman, and Stansbury remind us that there are ethical concerns to consider.

Stansbury highlights ethical duties. Focusing on the profession of librarianship, she notes that the “Library Bill of Rights” and the “American Library Association Code of Ethics” promote an informed citizenry, intellectual freedom, freedom of speech, and access to information. She also offers evidence, however, that some librarians are conflicted over protecting these rights and responding to suspicious acts in light of the USA PATRIOT Act. It is an ethical tug between responsibility for advancing the individual freedoms of patrons and responsibility for protecting the communities librarians serve.

Although Stansbury focuses on ethical responsibilities of librarians, her discussion should remind all professionals of ethical dilemmas posed by the tension between protecting homeland security and protecting civil liberties. For example, Stansbury laments that ALA guidelines for librarians in light of the USA PATRIOT Act are just guidelines rather than edicts. This is similar to journalistic codes of ethics (such as those drafted by the Society of Professional Journalists and The American Society of Newspaper Editors) that guide the professional behavior of media practitioners but do not provide enforcement mechanisms to sanction journalists for ethical violations. Thus, although media practitioners have a long-standing duty to serve the public as watchdogs of government, a duty and tradition from which they should not shirk during wartime when the government has shown its greatest propensity to restrict constitutionally guaranteed freedoms, the codes of ethics lack the teeth to sanction them if they don’t meet their ethical duties to the audience they serve.

One professional group that is bound to a code of ethics that does provide censure for failure to meet mandated ethical standards is attorneys. Because of mandated ethical obligations, attorneys who represent those detained in the war on terrorism face a particular ethical dilemma. The dilemma is posed by the interim rule that provides for the monitoring of attorney-client interaction.49

The attorney-client privilege is perhaps the oldest recognized privilege pertaining to interpersonal communication in Anglo-American law.50 It is so sacrosanct that the Model Code of Professional Responsibility upon which most state laws governing attorney conduct are modeled makes maintaining the confidence of one’s client an ethical obligation of an attorney. As Persig and Kirwin explained, “our duty not to speak of what our clients tell us is as broad as the need which brings people to us.”51 Thus, an attorney can be held as breaching his/her duty to his/her client when privileged communications are made in front of others.

The Justice Department’s rule authorizing government monitoring of attorney-client discussions gives the attorney only two options when government monitors are present: (1) breach his/her ethical responsibility by acquiescing to the monitoring, or (2) do not talk to his/her client. Clearly, the potential chilling effect on the lawyer’s dialogue with his/her client in such a setting is great. If monitored, the discussion is going to be a public conversation even if the attorney and the detainee do not want it to be public. In fact, it is going to be publicized to the entity to which they are most likely not to want it publicized—the government doing the detaining (i.e., the adverse party).

In United States v. Zolin, the Supreme Court ruled that only the courts could determine whether the privilege is lost (due to the narrow “crime-fraud” exemption set forth in the Federal Rules of Evidence). The interim rule, however, permits the executive branch to usurp this judicial branch role. Such a scenario has the potential to be one of the most effective curtailments of free speech the government could put in place to control the only communication in which an interned person has a legal privilege to engage—with his/her attorney.

Thus, again, while Stansbury focuses on ethical responsibilities of librarians, she reminds all professionals of the particular ethical dilemmas homeland security policies can pose for them. She also reminds us, however, of the need to stand up and be advocates for individuals we serve even in the face of restrictions that may threaten our ability to do so.

Ikuenobe and Youngman focus more on moral considerations behind homeland security than on ethical duties. Youngman draws on universalist, cultural relativist, and associative schools of thought to frame her discussion of human rights. She references debates about how to define human rights, the scope of such rights, and whether they must incorporate democratic principles of self-determination.

An important theme is the notion that universal human rights must transcend national laws. Youngman references the moral view that human rights are necessary to any system of social cooperation. On balance, she suggests that the United States’ failure to ratify and enforce human rights treaties is a moral decision embodied in policies that “reflect social conservative or moral goals.”

Most importantly, Youngman juxtaposes what she refers to as an “America of exceptionalism” with an “America of republicanism.” In the former, she argues, civil liberties “flow from the cultural imperatives and moral foundations of the homeland.” It “would protect the homeland first and foremost, including, if necessary, compromising rights and liberties to do so.” In the latter, both homeland security and human rights would be protected—there would be no “either-or choice.” She concludes that it us up to us (i.e., “we, the people”) to decide what kind of America we want to be. In short, choosing homeland security and human rights or compromising the latter for the former is a moral dilemma that rests with all of us.

It is here that Youngman’s argument is closest to that of Ikuenobe. Ikuenobe critiques the attempt to use patriotism as a moral virtue. He argues that restrictions on rights may be justified in a liberal democracy pursuant to the idea that protecting the state may advance individual rights and freedom. But he contends persuasively that the use and blind acceptance of patriotism to a nation, regardless of the principles for which the nation stands, “is inherently irrational, uncritical, and therefore immoral.”

The ethical/moral issues raised by these scholars are salient, because the war on terrorism (and homeland security), like all wars, is a moral struggle. In such a struggle, according to Federal Judge Juan Torruella, “the rights of the few may have to give way to those of the many.”52 This utilitarian-like view also was recently expressed by law professor Jan Ting, who suggested that although “the struggle for victory in war can turn out to be hostile to the traditional civil liberties of Americans . . . if we lose this war against terrorism, no civil liberties will survive. The civil liberty we should be most concerned about right now is the right of all Americans, and non-Americans too, to live their lives in peace, free of the threat of terrorism.”53

Ikuenobe is not necessarily critical of such a conclusion. However, he is critical of how we reach that or some other conclusion. We must not rely on a simple heuristic such as “patriotism” to accept unconditionally homeland security policies. Rather, we must carefully and critically scrutinize those policies. This may be particularly true of professionals such as librarians who, Stansbury suggests, may be particularly well suited to help our society find the proper balance between civil liberties and national security. Youngman spreads the burden more broadly. She asserts that “we, the people” have a moral obligation to decide whether homeland security and individual freedom and human rights must be an “either-or” choice.

Youngman’s point is well taken, because, in theory at least, “we, the people” empower the government to exercise such policies on our behalf. We do so with a collective understanding that our government leaders will exercise that authority justly for us, not unjustly against us. We cannot assess its performance without the critical scrutiny Ikuenobe feels is morally necessary. Such criticism is not a lack of loyalty or devotion to our democracy. It is the ultimate exercise of loyalty and devotion. In short, if our government fails to balance appropriately homeland security and individual rights in furtherance of our democratic ideals, it is not just the government that fails. We all fail.


Clearly, balancing appropriately homeland security and civil liberties is crucial to the proper functioning of democracy in the United States. My comments in response to the panelists’ presentations are not intended to suggest that U.S. government officials have anything less in mind than the protection of both homeland security and civil liberties. The purpose merely is to suggest, in the spirit of the Democracy Symposium commemorating the May 4, 1970, events on the Kent State University campus, that we must consider today very deliberately our actions so that injustices committed in prior times of war are not repeated, even if inadvertently.

This requires sensitive consideration of concerns and issues raised by the scholars here and placing their concerns in the broader context of the inherent tension between homeland security and individual civil liberties during wartime. It is during wartime that we often feel impelled by a sense of urgency to act rather than by careful deliberation of the potential consequences of that action. Such periods of crisis have been referred to as “pathological” times.54 During such times we do not always consider, as Stansbury does, that we have individual responsibility in our system of self-governance to help our society reach the proper balance between homeland security practices and protection of individual and collective rights. During such times, we do not always consider concerns, such as those voiced by Youngman, that human rights and homeland security do not have to be an either-or choice. We may not be as concerned as Ikuenobe about the possibility that patriotism may be used uncritically today to resolve conflicts between civil liberties and homeland security in favor of the latter.

In light of heightened concerns over safety, constraints on civil liberties may not bother most of us today. That doesn’t mean, though, that they will not bother us tomorrow.

Today we know, for example, that the 1798 Sedition Act passed in response to a legitimate conflict with France was used illegitimately to silence newspaper editors simply for criticizing the government. Today we know that President Lincoln exceeded his war powers when he suspended the writ of habeas corpus during the Civil War. Today we know that the Espionage Act was used during World War I to prosecute individuals for doing little more than engaging in political protest, which we take for granted at the beginning of the twenty-first century. Today we know that the military necessity argument used by the executive branch during World War II to convince the Supreme Court of the propriety of interning tens of thousands of Japanese Americans was false. Today we know that careers and personal reputations were damaged needlessly during the early 1950s when the government used the Smith Act to target communists and alleged communist sympathizers. Today we know that the U.S. military used excessive force to quash protest in the name of public safety when thirteen students were shot and four killed on the Kent State University campus on May 4, 1970. Imagine what we may know tomorrow about actions being taken today in the name of homeland security.

Ting suggested that measures that adversely affected civil liberties during prior wars did not have lasting effect on U.S. society when the wars were over. In fact, he suggested “such infringements on civil liberties have heightened our sensitivity, so that today our concern for civil liberties is greater than it has ever been at anytime in our history.”55

If that is true, and I hope that it is, our heightened sensitivity should lead us to question closely the extent to which we are willing to accept infringements on civil liberties in the name of wartime homeland security. In searching for a reasoned and appropriate balance between preserving homeland security and protecting civil liberties, we must apply lessons learned during prior wars when assessing current wartime measures. For example, are there similarities between President Lincoln’s treatment of detainees during the Civil War and President Bush’s treatment of detainees during the war on terrorism? Did ethnocentrism play a part in the internment of Japanese Americans during World War II, and is ethnocentric thinking reflected in any current wartime initiatives? Are there similarities between the way we dealt with communism in the early 1950s and the way we are dealing with terrorism today? Are there any similarities between restraints on antiwar expression in previous wars and the treatment of such expression today?

In short, are current government wartime initiatives effectively balancing homeland security and civil liberties, or are they repeating prior failures? I do not know the answers to these and numerous other questions we must ask. But it is in the spirit of Kent State University’s Symposium on Democracy that we debate such questions today—rather than waiting until tomorrow, when it may be too late.


In citing works in the notes, several legal abbreviations have been used and are identified below.

Cong.                     Congress

D.                            Federal Court in the District <of state name>

E.D. Va.                   U.S. District Court for the Eastern District of Virginia

F.                             Federal Reporter

F.3d                        Federal Reporter, 3rd series

F. Cas.                    Federal Cases

F. Supp.                  Federal Supplement

F.R.D.                     Federal Rules Decision

Id.                            In legal writing, the equivalent of ibid. (Latin for “in the same place”); refers to a single work (e.g., book, court case, law) cited in the note immediately preceding.

S. Ct.                       Supreme Court Reporter

S.D. N.Y.                 U.S. District Court for the Southern District of New York

Sup. Ct.                   Supreme Court Reporter

Supra (or supra)     Refers to a prior note as specified

U.S.                         United States Supreme Court Reports

3rd Cir.                   U.S. Court of Appeals for the Third Circuit

4th Cir.                    U.S. Court of Appeals for the Fourth Circuit

6th Cir.                    U.S. Court of Appeals for the Sixth Circuit

1. Authorization for Use of Military Force, Public Law 107–40, 107th Cong., U.S. Statutes at Large 115 (2001): 224.

2. Uniting and Strengthening America by Providing Appropriate Tools Required to Interpret and Obstruct Terrorism (USA PATRIOT ACT) of 2001, Public Law 107–56, 107th Cong., U.S. Statutes at Large 115 (2001): 272.

3. President, Military Order, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” Federal Register 66 (November 13, 2001): 57833.

4. See, e.g., Jan C. Ting, “Unobjectionable but Insufficient: Federal Initiatives in Response to the September 11 Terrorist Attacks,” Connecticut Law Review 34 (2002): 1145; see also Emanuel Gross, “The Influence of Terrorist Attacks on Human Rights in the United States: The Aftermath of September 11, 2001,” North Carolina Journal of International Law and Commercial Regulation 28 (2002): 1.

5. See William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime (New York: Alfred A. Knopf, 1998); see also Paul Haridakis, “The War on Terrorism: Military Tribunals and the First Amendment,” Communication Law and Policy 9 (2004): 317.

6. See Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the United States, 4th ed. (State College, Pa.: Strata, 2001), 24–25.

7. See Anne English French, “Trials in Times of War: Do the Bush Military Commissions Sacrifice Our Freedoms?” Ohio State Law Journal 63 (2002/2003): 1225, 1228–29.

8. Ex parte Merryman, 17 F. Cas. 144 (D. Md. 1861).

9. Ex parte Milligan, 71 U.S. 2 (1866).

10. U.S. Statutes at Large 40 (1918): 553–54.

11. Abrams v. United States, 250 U.S. 616 (1919); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); and Schenck v. United States, 249 U.S. 47 (1919).

12. U.S. Statutes at Large 54 (1940): 670–71, codified at U.S. Code 18 (2004), sec. 2385.

13. See Dennis v. United States, 341 U.S. 494 (1951).

14. Korematsu v. United States, 323 U.S. 214 (1944).

15. See supra note 7, 1231–32.

16. For reviews, see supra note 4, Gross; John W. Whitehead and Steven H. Aden, “Forfeiting ‘Enduring Freedom’ for ‘Homeland Security’: A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives,” American University Law Review 51 (2002): 1081.

17. See supra note 16, Whitehead and Aden, 1090.

18. Kristen E. Uhl, “The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure Protection, and Homeland Security,” American University Law Review 53 (2003): 261, 275–81.

19. North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002).

20. Id., 202–3.

21. Id., 217.

22. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002).

23. Id., 280.

24. Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).

25. See Hirobayashi v. United States, 320 U.S. 81 (1943).

26. Korematsu v. United States, 323 U.S. 214 (1944).

27. United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921).

28. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, (1980).

29. 5 USC (2002), sec. 552.

30. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).

31. Supra note 3, “Detention, Treatment, and Trial,” 57833.

32. U.S. Department of Defense, Military Commission Order No. 1, “Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism,” March 21, 2002,

33. Id., sec. 4C(3)(b).

34. See, e.g., Harper & Row v. Nation Enterprises, 471 U.S. 539, 559 (1985); Turner Broadcasting System v. FCC, 512 U.S. 622, 641 (1994).

35. U.S. Department of Justice, “National Security; Prevention of Acts of Violence and Terrorism; Final Rule,” Federal Register 66 (October 31, 2001): 55062–66.

36. For a discussion, see Akhil Reed Amar and Vikram David Amar, “The New Regulation Allowing Federal Agents to Monitor Attorney-Client Conversations: Why It Threatens Fourth Amendment Values,” Connecticut Law Review 34 (2002): 1163.

37. United States v. Zolin, 491 U.S. 554 (1989).

38. See, e.g., supra note 36, Amar and Amar, 1164.

39. For a discussion, see supra note 16, Whitehead and Aden, 1113–14.

40. Id., 1114–15.

41. Detroit Free Press v. Ashcroft, 303 F.3d 681, 710 (6th Cir. 2002).

42. Ex parte Quirin, 317 U.S. 1 (1942).

43. Charles Lane, “Terrorism Cases Reach High Court,” Akron Beacon Journal (April 18, 2004), sec. A.

44. Amanda Schaffer, “Life, Liberty and the Pursuit of Terrorists: An In-Depth Analysis of the Government’s Right to Classify United States Citizens Suspected of Terrorism As Enemy Combatants and Try Those Enemy Combatants by Military Commission,” Fordham Urban Law Journal 30 (2003): 1465.

45. Supra note 4, Gross, 6.

46. Padilla v. Bush, 233 F. Supp.2d 564 (S.D. N.Y. 2002).

47. United States v. Moussaoui, 205 F.R.D. 183 (E.D. Va. 2002).

48. For a discussion, see supra note 4, Gross, 37.

49. See J. Soffiyah Elijah, “The Reality of Political Prisoners in the United States: What September 11 Taught Us About Defending Them,” Harvard BlackLetter Law Journal 18 (2002): 129.

50. United States v. Zolin, 491 U.S. 554, 562 (1989).

51. Maynard E. Persig and Kenneth F. Kirwin, Professional Responsibility: Cases and Materials, 3rd ed. (St. Paul, Minn.: West Publishing, 1976), 338.

52. Juan R. Torruella, “On the Slippery Slopes of Afghanistan: Military Commissions and the Exercise of Presidential Power,” University of Pennsylvania Journal of Constitutional Law 4 (2002): 648, 688.

53. Supra note 4, Ting, 1147.

54. Vincent Blasi, “The Pathological Perspective and the First Amendment,” Columbia Law Review 85 (1985): 449.

55. Supra note 4, Ting, 1147.