Since the events of September
11, 2001 popular debate has surrounded the issue of balancing civil
liberties against the need for security. The hue and cry is
“extraordinary times call for extraordinary measures.” The effect of
these extraordinary measures will be far reaching. Compromising our
constitutional freedoms places victory squarely in the hands of the
Repressive legislation reflects popular human reactions to
the violence witnessed in New York. But fear, revenge, retribution, and
the like should not control a society’s response to extraordinary
(horrific) events. When I was growing up, my post–World War II Jewish
household on the East Coast of the United States of America provided the
kind of security that left little room for notions like the Holocaust,
Japanese internment, and slavery. Discovering the struggles of African
Americans after the Civil War was shocking. The first book I remember
reading, more than once, was the story of Harriet Tubman and the
Underground Railroad. Soon thereafter, I began to read every book
available on the rise and fall of the Third Reich. How could my parents’
contemporaries have been branded with numbers and led to their deaths in
what my father called “the showers”?
During high school, as I witnessed a police officer’s violent
response to a young college student’s taunting reference to “pigs,” I
realized that government protection of individual rights, civil
liberties, and constitutional guarantees formed the foundation of the
secure environment within which I was growing up.
A legal education seemed basic. Everyone should know the
constitutional security blanket that protects them from governmental
Before September 11, 2001 the path to security seemed clear. Any
repression of constitutional liberties must be fought to prevent the
kind of evils a society can perpetrate against its least popular
Although a society is made up of individuals, a government must not
react with human emotion. The desire to kill an individual who commits
violence against you or your sister is a natural human response — for an
individual. Society or government must react differently. If our
government reacts as an individual, we revert to the doctrine of
survival of the fittest and freedoms are destroyed.
Recently a New York Times article cited interviews with inner-city
African Americans in Harlem who felt that the government would be
justified in rounding up Arabs or Muslim Americans and holding them
without trial. Doesn’t such a position suggest racial profiling, which
is justifiably abhorred by civil libertarians?
The government is obligated to protect us from attack. Preventing
hijackers from boarding airplanes with weapons or bombs has long been
the goal of airport security. But the failures of airport security on
September 11, 2001 cannot result in the abrogation of the Bill of
Congress and the Executive Branch must engage in a very delicate
balancing act. The repressive legislation passed since September 11,
2001 is not going to disappear with the demise of the Taliban, Al Qaeda,
and Osama Bin Laden. Americans will have to live with whatever
restrictive measures are enacted by the current leaders of our nation,
including George W. Bush and John Ashcroft.
Searching the bags of everyone at the airport, if deemed appropriate
by the government, may be a legitimate tactic. However, rounding up
people from the Middle East, Muslims, or suspected affiliates with the
Middle East and detaining them without a trial or a court hearing cannot
be tolerated. The government has begun to detain people solely on the
basis of racial profiling and without identifying them publicly.
Proposals to hold secret tribunals to try suspected terrorists will have
a long-lasting impact on our American system of jurisprudence.
Most of our Arab-American friends are successful business people:
they pay taxes and are law-abiding citizens. The recent murder of a
Yemenite storeowner in Fresno indicates the irrational — even if
emotionally understandable — response of individual “patriotic”
It is the responsibility of the government to protect us from foreign
terrorists. Likewise, it is the government’s responsibility to protect
us from our own illegal responses.
My security of growing up in America in the 1950s and 1960s resulted
from our government’s protection of individual freedoms, including free
speech and a fair hearing to redress grievances. In the past, temporary
measures, such as the suspension of habeas corpus by Abraham Lincoln
during the insurrection of the South, have been instituted at a time
when active warfare threatened the destruction of our Union.
Although the threat presented by the September 11, 2001 events does
call for additional security measures, the erosion of our constitutional
freedoms can result in a holocaust of our own. The identification of
racial or religious groups for disparate treatment can only result in
evils we all consider obvious. The enslavement of African Americans or
the governmental genocide of Jews is no different from the detention of
Arab Americans or American Muslims solely on the basis of race or
As the government embarks on the noble effort of increasing our
security and protecting us against terrorists, the balance of securing
civil liberties and constitutional freedoms must be protected.
Repressive legislation arising from fear, intimidation, or special
interests cannot be tolerated.
A society must be judged by the way it treats its least popular
members. America has always been a shining star in this area. The events
of September 11 cannot shake the foundation upon which this government
and system of life rest.
People say, “Extraordinary times require extraordinary measures.” It
takes extraordinary fortitude to protect civil liberties in early 21st-century
America. God help our leaders to protect us from foreign enemies and
from the evils within. The terrorists must not prevail.
Eric Safire is a San Francisco attorney (www.safirelaw.com).