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The State of Civil Liberties

Necessary and Defensible

Our critics are downplaying these concerns over civil liberties, insisting that limitations imposed on individual freedom during wartime are almost always temporary, and that we can expect a return to normal conditions once hostilities are ended.


But the war on terrorism, unlike conventional wars such as the two World Wars, is unlikely to come to a public, decisive end any time soon. Homeland Security Director Ridge, for example, has equated the war on terrorism with the nation's continuing war on drugs and crime.

Consequently, restrictions on civil liberties may be with us for a very long time. So long, in fact, that they may change the very notion of freedom in America, and the character of our democratic system in ways that very few, if any, Americans desire. There are, in other words, long-term concerns that must be taken into account so that America will be both "safe and free."

That is why we need to be vigilant and carefully scrutinize actions the government is taking - actions that may limit our liberty without adding anything to our safety. At the ACLU, we believe that every proposal to restrict liberty should be made to pass a "necessary and defensible" test.

That is, in evaluating each new proposal we must ask:

  • Is the proposed new restriction necessary-will it in fact increase our security?
  • Is it defensible-will the increased benefit to security outweigh the cost to constitutional guarantees of procedural fairness, free speech and privacy?

If we believe conventional wisdom, national security always trumps civil liberty. Fortunately, large segments of the American public have a strong commitment to the freedoms expressed in the Bill of Rights. In a 1972 Supreme Court case, Thurgood Marshall noted that "The U.S. is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system."

Make no mistake; the challenges ahead of us are stark. Staunch civil libertarians such as Alan Dershowitz are already saying that incursions into freedom are the price we need to pay to ensure our security from further terrorist attacks.