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Civil Liberties in War Time

Interview with Robert A. Levy

Robert A. Levy is a Senior Fellow in Constitutional Studies at the world renowned Cato Institute located in Washington, D.C. The Cato Institute seeks to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets and peace. Toward that goal, the Institute strives to achieve greater involvement of the intelligent, concerned lay public in questions of policy and the proper role of government.

Please describe your organization in detail.

The Cato Institute is a nonprofit educational research institution that focuses on issues concerning private property, free market, limited government, and individual rights.

What, if any, changes to civil liberties have you witnessed since September 11, 2001?

Since September 11, there has been a shift toward a government role in protecting citizens from foreign predators. With this increased protection, tension has increased between security and civil liberties. Whenever the government determines that it is necessary to compromise civil liberties, the government must "jump through" certain loopholes. They must convince the public that they will be protected, and they must prove that there is no better way in achieving this goal than curbing civil liberties.

Also, the government must maintain a separation of powers. In the American constitutional system, we have a division of government. However, since 9/11, the executive branch—especially the Justice Department—has taken unilateral actions in setting, enforcing and reviewing rules. In such a scenario, one branch of government exerts too much power and is therefore overstepping its boundaries.

What direction is the nation going? How do you feel about this change?

According to recent polls, the people of America are willing to give up civil liberties because of the fear of potential or definite threat. While it is okay for individuals to choose to give up their own individual civil liberties, it is unacceptable for individuals to choose to give up civil liberties of others. Thus, it is necessary to reflect on the wisdom imparted by the framers who established our constitutional government. Our representative government was established to shield citizens from the temporary passions of the majority. Thus, we must fall back on the protective device of our nation: the Constitution. As Thomas Jefferson once said, "The price of liberty is eternal vigilance."

Is the implementation of national IDs possible? How would national IDs affect citizens of the United States?

Yes it is possible, and it is potentially abusive. There are three major levels of concern:

1- IDs used to prove who we say we are (ie- drivers license, passports)
2- IDs that have encoded material through biometric indicators. Databases only contain information of bad people. While this is somewhat acceptable, there still exists a potential for abuse. Who monitors this database to make sure that the government does not abuse it? What punishments would exist for the abuse?
3- Databases on every member of society. These IDs would include financial, legal, and personal records among other things. This would provide a dossier for the government to track an individual's every action.

What is a possible alternative or solution to the underlying problem?

The most acceptable alternative would be the second form of Identification. With proper safeguards, individual can be protected under this system. Furthermore, perpetrators of the law lose certain rights when they violate the legal code.

Is there a way to strike a balance between maintaining civil liberties and securing our nation?

It is necessary to weigh costs and benefits. In our current situation, there are many gray areas, but we must always maintain an allegiance to the terms set forth by the founding documents of our society.

Is the infringement of privacy a necessary evil in maintaining security?

Airport security is perfectly justified in the status quo. This is not racial profiling because it does not impose a major rights violation on citizens. In the case of airport security, they are simply trying to narrow the scope of violence. However, subpoenas, detainment, and custodial interrogation are unacceptable in scenarios where people are not allowed to walk away from the situation.

In what direction do you feel Congress will steer the nation in the upcoming Congressional session?

The Congress will probably support military action in Iraq. However, all further actions that cause a potential or definite violation of civil liberties should be subject to sunset provisions (they expire after a specified period of time). The USA Patriot Act currently allows law enforcement officials to trample on the rights of individuals.

What role can citizens play in the struggle between civil liberties and security?

Citizens should always be aware of civil liberties violations and make such violations known. Citizens can contact their Congressional Representatives, write letters to the editor in newspapers, and call into radio talk shows.

Submitted by: EJ Stern, Intern, summer 2002

Read what a paralegal in the Criminal Section of the Civil Rights Division has to say on the subject of civil liberties in war time.