page 4 Order is imposed on a
society by restricting freedom.[79]
Thomas Hobbes believed that complete obedience to
Leviathan's strict laws was a small price to pay for living
in a secure society, a principle that some initially used to
justify Taliban rule. (Indeed, with the Taliban ousted from
the Afghan city of Jalalabad, which was not patrolled by
U.N. peacekeepers, reporters said that the city "returned to
the thieves."[80]
A citizen of Kandahar said, "I'm not missing the Taliban,
but security was very good under them."[81])
After the September 11 attack, the United States took
extraordinary measures abroad and at home to prevent further
terrorism. Some measures merely cost money; others limited
freedom Spending money to prevent
terrorism: In mid-November, the U.S. government released
its first estimate of the cost of waging war in Afghanistan.
The biggest expense--up to then--was $634 million for
deploying more than 50,000 members of the armed forces,
three carrier battle groups, and more than 400 aircraft into
the region. The total cost estimate at that time was over $1
billion per month, and it was expected to rise as the war
progressed.[82]
Defense against terrorism at home included round-the clock
military air patrols over U.S. cities, which cost $324
million.[83]
More millions were spent stationing armed reserve troops at
all major airports and severely tightening airport security.
To coordinate the defense against terrorism at home,
President Bush created an entirely new agency, the Office of
Homeland Defense, which Congress was preparing to fund in
2002 with over $7 billion, a large part intended to help
guard the previously unguarded 5,500 mile border with
Canada.[84] In addition, the attack
itself hit the U.S. economy hard. All airports were shut for
days after the attack, and many travelers were afraid to fly
after they opened. One research institute calculated that
the attack caused the loss of 1.8 million jobs across the
nation, mainly in restaurants, financial services, and the
airline industry.[85]
As a result of defense costs and the economic downturn, the
government's annual budget--which was expected to show a
healthy surplus--would show a deficit of billions of dollars
for the year and perhaps a decade afterward.[86]
Nevertheless, Congress was preparing to increase
substantially the defense allocation in the 2002 budget,
providing for new technological hardware.[87] Curtailing liberties to
prevent terrorism: Of greater significance for American
society and politics was its citizens' loss of freedom in
the form of curtailed civil liberties. United States
citizens are justifiably proud of their freedom of
expression. The First Amendment to the U.S. Constitution
says "Congress shall make no law . . . abridging the freedom
of speech, or of the press." The Supreme Court (and thus
lower courts) have rigorously enforced this provision, which
has become close to an "absolute" freedom that can be
infringed only under special circumstances. For example, in
1919 the Supreme Court cautioned that "The most stringent
protection of freedom of speech would not protect a man in
falsely shouting fire in a theater, and causing a
panic."[88]
By the same reasoning, the Court allowed air travelers to be
prosecuted for joking that they had a bomb in their
suitcase--even prior to September 11. Since September 11,
there is no tolerance within the legal community or among
the public for any traveler's reference to knives, guns, or
terrorism. Such restrictions on freedom
of speech are understandable and not a major threat to civil
liberties. Constitutional scholars and civil libertarians
are more worried about the rights of U.S. citizens of Middle
Eastern origin. History gives reason for concern. Following
Japan's attack on Pearl Harbor in December, 1941, and the
beginning of World War II, the government forcefully
transported Japanese-American citizens into "relocation"
(concentration) camps during the war. When one Fred
Korematsu sought to evade detention, he was arrested, tried,
and convicted. When his case was appealed to the Supreme
Court during the war, the Court upheld his conviction,
saying, ". . . hardships are a part of war, and war is an
aggregation of hardships" and holding that "when under
conditions of modern warfare our shores are threatened by
hostile forces, the power to protect must be commensurate
with the threatened danger."[89] In reaching that decision,
the Supreme Court drew on a legacy of historical writings,
presidential actions, and court decisions. In 1787,
Alexander Hamilton, one of the supporters of the proposed
Constitution, wrote in defense of broad central powers
during threat to the nation's security: "The circumstances
that endanger the safety of nations are infinite; and for
this reason no constitutional shackles can wisely be imposed
on the power to which the care of it is
committed.[90]
During the Civil War, President Lincoln revoked the
constitutional right of habeas corpus, which
guarantees a court hearing to anyone
imprisoned.[91]
Indeed, the Supreme Court has granted wide discretion to
presidents in time of war, including authority "to seize and
subject to disciplinary measures those enemies who in their
attempt to thwart or impede our military effort have
violated the law of war," including the use of military
tribunals.[92] On December 4, President
Bush announced that he wanted to create military tribunals
to try suspected terrorist who are not U.S. citizens. Before
a cheering crowd in Florida, he said, "The United States is
under attack, and at war, the president needs to have the
capacity to protect the national security and interests of
the American people." He explained that military tribunals
were needed because trials in ordinary courts might
compromise national security secrets about how we acquired
information.[93]
Of course, Bush was not acting without precedent.
Nevertheless, within days, more than 300 law professors from
across the nation signed a letter charging that the
tribunals were "legally deficient, unnecessary and
unwise."[94] Perhaps of greater concern
than providing for military tribunals (none of which had
been created by mid January 2002) were comments made by
Bush's Attorney General, John Ashcroft, defending the
administration's efforts to combat terrorism. Speaking
before the Senate Judiciary Committee, he said, "To those
who scare peace-loving people with phantoms of lost liberty,
my message is this: your tactics only aid
terrorism."[95]
Many scholars, journalists, and political leaders were
appalled by the Attorney General's remarks, which suggested
that people were somehow disloyal if they did not support
the administration's approach for combatting terrorism at
home. But average citizens seemed
to support the administration. A national poll taken just
after the administration announced its plan to create
military tribunals to try suspected terrorists, 77 percent
of the public thought it a good idea to detain noncitizens
"indefinitely if the government thinks the person is though
to a threat to national security." And 72 percent thought it
a good idea "for the government to listen in on conversation
between suspected terrorists in jail and their lawyers." And
even 64 percent thought it a good idea "for the president to
make changes in the rights usually granted by the
Constitution."[96] How could a public which
historically has been proud of its civil liberties respond
like that? Democratic Representative Barney Franks, a
longtime member of the Judiciary Committee in the U.S. House
of Representatives, noted that the measures under
consideration generally involve noncitizens, so most
Americans don't expect their own liberties to suffer. He
added: A legacy of the September
11 attack: When war or terrorism affects people's daily
lives, they become frightened; they look to government to
provide law and order for protection. They become less
concerned with justice (i.e., fair and equal treatment of
people accused of crimes) and more concerned with preventing
harm. Administration of justice involves dealing with the
past--with determining what happened and who did it.
Prevention of crime involves dealing with the future--with
keeping something from happening, not knowing who might do
it, or even what "it" is. Consequently, citizens are more
likely to give wider latitude to government to provide
order. And governments in Europe, as well as the U.S.
government, have acted accordingly. About the same time that
President Bush announced his plans to create military
tribunals, France expanded its police powers to search
private property without warrants, Spain curbed
organizations associated with a Basque guerrilla group
(E.T.A.), Germany loosened restraints on telephone taps,
Britain gave prosecutors the right to detain indefinitely
and without trial foreigners suspected of terrorist links,
and the European Union formulated a common arrest warrant
and a common definition of a terrorist act. Daniel Valliant,
France's Interior Minister, said, Europe's new concern about
preventing terrorist attacks illustrates how globalization
has come to function like a broad collective security
agreement (e.g., NATO) which regards an attack on one member
as an attack on all. In this interpretation, economically
advanced nations with global connections might imagine that
the September 11 terrorist attack on the United States was,
or might be, an attack on them. In this view, the terrorist
attack on America was indeed an attack on
civilization.