In the national fury after the Sept. 11 terrorist attacks against America, proposals are rapidly surfacing to strengthen our security and track down any terrorists still at large. Some of the proposals are desirable and will accomplish their purposes without offending legitimate privacy interests. Others are troublesome and may threaten constitutionally protected freedoms.
As House Minority Leader Richard A. Gephardt put it: "We are in a new world. ... We are not going to have all the openness and freedom we have had."
But Senate Judiciary Committee Chairman Patrick J. Leahy cautioned: "We have to be careful that in our horror and revulsion over this horrendous and terrible act ... we don't start giving away the freedoms that make us different from terrorist. ... [If we do so] some would argue that the terrorists win."
New security/enforcement proposals arrive daily. Some - enhanced airport and aircraft security, for example - seem necessary, reasonable and overdue. A ban on curbside baggage check-in and denial of gate access to nonpassengers appear trivial measured against the risks. Even aggressive baggage searches and passenger pat-downs that are routine in other democratic nations are likely to be effective, reassuring and inoffensive to most travelers.
Other proposals go further. Attorney General John Ashcroft has proposed an emergency anti-terrorism legislative package that would expand existing wiretap laws to include suspected terrorists. He would also permit wiretapping of targeted individuals wherever they may be and, in this age of cellular and disposable phones, he would free law enforcement from the need to specify phone numbers when applying for wiretap authority.
The current climate also breathes new life into proposals to facilitate government's access to private e-mail and other online communications by requiring encryption software to contain a "back door" to allow government investigators to decode scrambled messages.
Ashcroft also asserts broader authority to detain legal immigrants for investigation. A draft bill now circulating on Capitol Hill would accelerate the government's ability to deport suspected terrorists, essentially bypassing the courts. Although officials deny it, the thought that a Middle Eastern "profile" has become an ingredient of suspicion is difficult to resist.
Private companies, encouraged by a newly welcoming atmosphere, are making even more intrusive proposals. According to one news report, a "security consultant" says that "each American could be given a `smart card' so, as they go into an airport or anywhere, we know exactly who they are." Such cards, embedded with the holder's personal data - appearance, fingerprints, financial information - would allow continuous computer tracking of the holder's whereabouts and activities.
Some private companies are already marketing cameras with face-recognition software plugged into police databases. Tampa police used such devices at January's Super Bowl. We can soon expect suggestions of even more sophisticated surveillance techniques.
What we should demand from our legislators during this understandable hunger for security are calm and dispassionate assessments. Security concerns are obviously of enormous importance. So are the liberties of Americans. Neither the hard-liners on the security/enforcement fringe, nor fretful hand-wringers who instinctively distrust any claims of "security," have got it right. Balance and reasonableness - the touchstones of the Fourth Amendment's protection of privacy - are the heart of the matter. Abstractions are not tools of analysis. Constitutionality is in the details.
Many of the current proposals are short on detail. Legislators must ask hard questions: What showing of need has been made by those advocating a security measure that impinges on privacy? Have the proponents of a security/enforcement proposal demonstrated that it is likely to be more than marginally effective, that it could have prevented the events of Sept. 11, or that it might deter similar atrocities? Are judicial safeguards in place? Should law enforcement officers be required to get judicial permission - warrants - to use new enforcement tools?
What is the price we are asked to pay in our privacy and freedom of movement in exchange for enhanced security? At what point is that price too high?
It is said that the public will willingly trade its freedoms in exchange for the promise of security. That is probably true. Public opinion polls reflect it and history confirms it. Fear, especially fear of the unknown and the alien, leads to panic. And panic leads to repression. We need look no further than the internment of Japanese-Americans after Pearl Harbor to remember how ready we are, at least in the short run, to turn our backs on the Bill of Rights.