The Law in Wartime

Our topic is the tradeoff between civil liberties and national security. So, let me begin by giving you a framework.

The structure of our federal system can be explained in major part by the final two provisions of our Bill of Rights, the Ninth and Tenth Amendments. The Tenth Amendment tells us that the national government may exercise only those powers that are enumerated in the Constitution—for example, the power to coin money and establish post offices. The amendment goes on to say that powers not enumerated, and not delegated to the national government, are reserved to the states or, depending on provisions of state law, to the people.

The Ninth Amendment addresses rights, not powers. It refers to those rights we can invoke against government, the realm of political society, not the rights that arise out of consensual private arrangements, the realm of civil society. Specifically, the Ninth Amendment provides that the enumeration of certain rights in the Constitution should not be interpreted to deny rights that we possessed before government was formed, even if those rights were not enumerated in the forming document. That safeguard imposes another powerful discipline on federal behavior. In exercising its legitimate powers, the federal government may not do so in a manner that violates our rights. And in determining what rights may not be violated, the Ninth Amendment instructs that we look both to those that are expressly enumerated, like free speech, and to those that are unenumerated, like the right to seek gainful employment from a willing employer or to marry a willing partner.

So the Constitution can be viewed through both a powers-of-government prism and a rights-of-individuals prism. Liberty is maximized when the role of political society (government) is reduced and the role of civil society (private, voluntary relationships) is expanded. Accordingly, we view the powers of government narrowly and the rights of individuals broadly. That, of course, was precisely the view of the Framers.

That is the constitutional framework. That framework, and other principles grounded in natural rights, dictate the Objectivist position on an array of policy questions. After drawing lines based on fundamental rules, we can comfortably categorize a wide range of concrete applications as falling on one side of the line or the other. Once we have determined, for example, that antitrust laws violate basic tenets of private property, we don't have to explore every nook and cranny of the Microsoft case to know that the government's case is not justified.

That is not to say there aren't some ambiguities at the margin. Even when there is virtually no dispute about the foundational principles, there may still arise disagreement over specific questions. To illustrate: Not all Objectivists share the same views regarding, say, nuisance law (what behavior violates the rights of your neighbor?), endangerment (what safety regulations may the government impose on, say, nuclear power plants?), remedies (what redress is appropriate for various crimes?), and enforcement (what are the limits of the police power?). That final question—the limits of the police power—is related to today's topic. How far may law enforcement officials go in compromising civil liberties to enhance national security?

Objectivists agree that national security is a legitimate function of government. The state is responsible, first and foremost, for the protection of life, then liberty. The Constitution, as Justice Robert Jackson warned, is not a suicide pact. Even hardcore champions of the Bill of Rights concede that it would be foolish to treat civil liberties as inviolable when the lives of innocent thousands are at stake. So, where to draw the line? Today, we are going to look at three issues that have arisen in the aftermath of 9/11: military tribunals, ethnic profiling, and national ID cards.

MILITARY TRIBUNALS

In March (2002), the administration released its rules for military tribunals. Defendants will be presumed innocent, subject to proof beyond reasonable doubt; they need not testify; they can hire civilian attorneys or get free military counsel. There will be no double jeopardy. Capital cases will require a unanimous verdict. All verdicts can be appealed to a three-officer panel. Trials will be open, except for safety or to protect classified information. That's the good news, which responds to many of the criticisms leveled by civil libertarians. But it is not good enough.

The administration proposal misses the boat in four key areas. First, tribunals should be convened only outside of the United States. On U.S. soil, our criminal courts are a perfectly acceptable venue. Secondly, if tribunals are convened here, they should be limited to prosecuting unlawful combatants, not merely someone who may be tangentially related to international terrorism. Thirdly, they should be congressionally authorized, not unilaterally decreed by the executive branch. Lastly, verdicts should be appealable to our civilian courts, not only to a military review board. Now for the details.

There is great sympathy in America for hunting down terrorists, convicting them, and meting out heavy-duty punishment. I share those objectives. Strap Osama bin Laden in the electric chair and I'll throw the switch. But I also have great regard for the Constitution, especially the Fourth, Fifth, and Sixth Amendments, which bar unreasonable searches, guarantee due process, and ensure a speedy trial by an impartial jury. The Bill of Rights does not apply just to U.S. citizens, and no responsible authority argues otherwise. When the Framers wanted to say citizens, they did. And when they said persons, people, or the accused, that is what they meant.

So, here is the threshold question for anyone who wants to use military tribunals in the United States to prosecute non-citizens suspected of international terrorism: Are the Fourth, Fifth, and Sixth Amendments available to all defendants, including international terrorists? Or are there different rules for terrorists? Let's assume, first, that the Bill of Rights applies across the board. If so, the Bush military order on tribunals is clearly unconstitutional. To the extent that the order permits, as it does, prosecution of non-citizens who are arrested here, tried here, and reside here, it denies those persons their constitutionally guaranteed rights. And that is no small matter. There are 18 million non-citizens in the United States; the large majority of them are here legally.

That is not to say tribunals should not be used to prosecute non-citizens apprehended overseas. Those persons are not entitled to constitutional protection, and tribunals are a legitimate venue to try, convict, and punish them. But for persons residing in the United States, constitutional rights cannot be so casually discarded.

Yes, the Supreme Court said in 1942 that it was perfectly O.K. to use military tribunals in the United States, even to try citizens if they are suspected of being unlawful combatants. That was the holding in Ex parte Quirin. Eight Nazi saboteurs, at least one of whom was a U.S. citizen, were captured in the United States, tried, and convicted here before a tribunal; six of the eight were executed. Before their execution, the Supreme Court affirmed that violations of the law of war by unlawful combatants are not the kind of offenses, rooted in the common law, that are covered by the Fourth, Fifth, and Sixth Amendments.

Some have argued that Quirin was wrongly decided. After all, nothing in the text of the Constitution suggests a separate category of offenses to which the Bill of Rights does not apply. To be sure, emergency circumstances sometimes require emergency solutions. Still, the Constitution applies in both peace and war. The Framers contemplated emergencies: Article I, section 9, allows suspension of habeas corpus in cases of rebellion or invasion. Article I, section 10, allows a state, without the consent of Congress, to engage in war if it is "invaded, or in such imminent Danger as will not admit of delay." The Framers could have provided for other emergency powers; but they did not.

No matter, let's assume that Quirin is correct. That means unlawful combatants, captured on our soil, may be tried by a military tribunal under certain conditions. What are those conditions? And do they comport with the Bush military order? First, saysQuirin, military tribunals must "not bar accused persons from access to the civil courts." Compare the words of the Bush military order: A detainee "shall not be privileged to seek any remedy…directly or indirectly…in any court of the United States." The Bush military order, in denying a civil judicial remedy, has violated the Quirin mandate.

Secondly, says Quirin, Congress formally declared war against Germany. And articles of war "explicitly provided…that military tribunals shall have jurisdiction to try offenses against the law of war." By contrast, the entire Bush scheme was concocted without congressional input. Bush invokes his authority as commander in chief to establish the new tribunals. But that authority is, at best, shared with the legislative branch. Congress, not the president, is empowered by Article I, section 8, to "constitute Tribunals inferior to the supreme Court," and to "define and punish…Offenses against the Law of Nations."

The administration responds that Congress has spoken. On September 14, the Senate and House overwhelmingly passed a resolution authorizing action against persons that "planned, authorized, committed or aided" the terrorist attacks of 9/11. True enough, but the resolution had nothing to say about tribunals. It sanctioned the use of force, not the procedures for convicting enemy belligerents. Furthermore, the September 14 resolution, unlike the Bush order, relates only to persons involved in the acts of 9/11. The reach of the Bush order—i.e., anyone involved with international terrorism—cannot be squared with Congress's resolution.

Despite all that, let's say we do not need a formal declaration of war, or even express legislative authority for military tribunals. All that matters is objective reality: we are in a state of war. Congress's resolution is good enough. Ergo, according to Quirin, military tribunals may try offenses against the law of war by unlawful combatants, even here in the United States. But who are those unlawful combatants? That term of art describes enemy belligerents who do not have uniforms or other insignia of a command structure, do not openly possess weapons, and will not themselves commit to abide by the law of war. Terrorist groups like al-Qaeda surely qualify. The Taliban might not.

The scope of the Bush military order is substantially more elastic. Bush tribunals apply, not only to al-Qaeda, but to any non-citizen that Bush has "reason to believe" has "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor." Or anyone who has knowingly harbored such a person. We do not know how direct the involvement with terrorists must be, where it occurred, when it occurred, or against whom it occurred. We do not even have a definition of international terrorism. Conceivably, someone who unwittingly contributed to a charity that funneled money to a terrorist organization could be prosecuted by a military tribunal.

Here is the argument in a nutshell. If the Bill of Rights applies to unlawful combatants who are legal aliens in the United States, the Bush military order is unconstitutional. If the law of war is in force, military tribunals in the United States must be, first, subject to civil judicial review; secondly, authorized by Congress; and thirdly, limited to prosecuting unlawful combatants. In any event, the order as it now stands shows too little respect for the separation of powers. The executive branch sets the rules, then prosecutes, then has sole review authority—unchecked power in a single branch of government. And those of us who raise that concern are not, in the attorney general's unfortunate and offensive words, "giving ammunition to America's enemies," "aiding terrorists," or "eroding our national unity." We are, instead, upholding the Constitution, securing the values that sustain a free society, and at the same time preserving for the president the option of using military tribunals outside of the United States, where they belong.

Well, suppose we do not use military tribunals on U.S. soil. How do we avoid turning our criminal courts into another O.J. circus? Actually, the risk is minimal. The government successfully used our criminal courts to prosecute terrorists: those linked to the original 1993 World Trade Center bomb conspiracy, the foiled plot involving New York City tunnels, and the bombing of our embassies in Africa. All of the defendants were convicted, sentenced to long prison terms or death. The Department of Justice decided to prosecute Zacarias Moussaoui in a Virginia federal court. He is a French citizen, captured in Minnesota, where he legally resided.

That makes sense; it is constitutional; it helps with countries like Spain, which will not extradite suspects to the jurisdiction of a U.S. military tribunal; and it reclaims the moral high ground when we are faced with the possibility of Star Chamber proceedings against U.S. citizens in countries that have little respect for human rights.

Northern Virginia, where Moussaoui is being tried, is a particularly desirable venue. It is home to the Central Intelligence Agency and the Pentagon; it is loaded with high-level federal workers and contractors; and it is no stranger to the death penalty. A northern Virginia jury pool is undoubtedly one of the attractions to the Department of Justice. And it is not the only one. The Eastern District is famous for its fast-track "rocket docket"; it has considerable experience with national-security cases that involve protecting classified information; the bench is considered tough on crime; and the Fourth Circuit of the U.S. Court of Appeals may be the most conservative in the United States.

A civilian court in northern Virginia was the right choice for Moussaoui. But compare his case with the case of José Padilla, who supposedly plotted to build and detonate a radiological "dirty bomb." Padilla is a U.S. citizen. Yet he is being detained by the military—indefinitely, without seeing an attorney, even though he has not been charged with any crime. Yaser Esam Hamdi is also a U.S. citizen. He, too, is being detained by the military—indefinitely, without seeing an attorney, even though he has not been charged with any crime. Meanwhile, Zacarias Moussaoui, purportedly the twentieth hijacker, is not a U.S. citizen. Neither is Richard Reid, the alleged shoe bomber. Both have attorneys. Both have been charged before federal civilian courts.

What gives? Four men: two citizens, two non-citizens. Is it possible that constitutional rights—like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel—can be denied to citizens yet extended to non-citizens? That is what the Bush administration would have us believe. But we cannot permit the executive branch to declare unilaterally that a U.S. citizen may be characterized as an enemy combatant, whisked away, detained indefinitely without charges, denied legal counsel, and prevented from arguing to a judge that he is wholly innocent.

That does not mean the Department of Justice must set people free to unleash weapons of mass destruction. But it does mean, at a minimum, that Congress must get involved and exercise its responsibility to enact a new legal regimen for citizen-detainees in time of national emergency. That regimen must respect citizens' rights under the Constitution, including the right to judicial review of executive-branch decisions. Constitutional rights are not absolute. But they do establish a strong presumption of liberty, which can be overridden only if government demonstrates, first, that its restrictions are essential and, secondly, that the goals it seeks to accomplish cannot be accomplished in a less invasive manner. When the executive, legislative, and judicial branches agree on the framework, the potential for abuse is significantly diminished. When only the executive has acted, the foundation of a free society can too easily erode.

PROFILING

Let me start with a definition: Racial or ethnic profiling involves the selection by law enforcement officers of persons—for investigation or stronger action—based on race, nationality, or ethnicity. To illuminate that issue, I'd like to discuss two specific profiling questions: First, whether it is hypocritical for black Americans to oppose profiling of blacks in the war against crime, then favor profiling of Arabs in the war against terrorism. Secondly, whether the Justice Department is justified in targeting Middle Easterners who have violated their visas, while ignoring violators from other countries.

According to the Gallup Organization, 71 percent of black Americans approve of profiling Arabs to combat terrorism. By contrast, an overwhelming percentage of black Americans condemn racial profiling in the war against crime. Do those two seemingly contradictory positions suggest an underlying hypocrisy? Not necessarily. To determine whether blacks are being hypocritical or just plain sensible, consider these three questions: (1) How important is the objective that the profile seeks to accomplish? (2) How effective is the profile in advancing that objective? (3) What is the potential for abuse?

Let's begin by examining the goal of the profile and the benefit if the goal is achieved. The gain from a criminal profile can range from, say, identifying a drug dealer to capturing a serial murderer. The gain from a terrorist profile might reach from halting an airplane hijacking to preventing madmen from using a weapon of mass destruction. Indisputably, the potential benefit of a criminal profile, while certainly not trivial, extends at most to saving a small number of lives. That pales in comparison to the potential benefit of a terrorist profile—saving thousands or conceivably hundreds of thousands of lives. On that ground alone, it seems rational to scrutinize criminal profiling more rigorously than terrorist profiling.

Next, how effective is a racial or ethnic profile in stopping crime or terrorism? Imagine, for the sake of argument, that all terrorists are Bolivians and all Bolivians are terrorists. Only a fool or a masochist would forbid Bolivian ethnicity from being added to a multi-factor profile of suspected terrorists. In fact, all of the 9/11 terrorists were reportedly of Middle Eastern descent. Yet, self-evidently, not all criminals are black. Thus, other things being equal, the fit of a terrorist profile that included ethnicity would likely be tighter than the fit of a criminal profile that included race.

Despite that, airport screeners perform random searches of 80-year-old women, little kids, airline pilots with proper IDs, and members of the president's security detail. When I asked an audience of students and faculty members at Rutgers Law School whether airport screening ought to take Middle Eastern ethnicity into account, they overwhelmingly said "no." To me, both common sense and hard evidence say "yes."

Consider these seven terrorist acts against the United States and its allies during the past thirty years: (1) In 1972, eleven Israeli athletes were killed at the Munich Olympic Games. (2) In 1979, the U.S. embassy in Iran was seized. (3) In 1983, the U.S. Marine barracks in Beirut was blown up. (4) In 1988, Pan Am Flight 103 was bombed. (5) In 1993, the World Trade Center was bombed. (6) In 1998, the U.S. embassies in Kenya and Tanzania were bombed. (7) On 9/11 we lost the World Trade Center, part of the Pentagon, and 3,000 American lives. Every single one of those acts was committed by male Muslim extremists, mostly between the ages of 17 and 40—not old women or little kids.

Lastly, consider the potential for abuse. No doubt, black Americans' anxiety about criminal profiling stems from our country's troubled history of racial discrimination. We have no comparable history of bias against Middle Easterners, nor have responsible persons suggested that airport searches, for example, are motivated by traditional bigotry toward Arabs or Muslims. The principal objection to profiling is its exploitation in the hands of officials who are animated by deep-rooted prejudice. On that score blacks have more cause for concern than do Middle Easterners.

There's another big reason to fear abuse when it comes to criminal profiles—the drug war. It creates perverse incentives that encourage profiling. Basically, the drug war is all about spending $37 billion annually trying to stop willing suppliers from selling drugs to willing consumers. In that victimless crime context, the culprits will not be identified using specific information furnished by customers, who are typically quite satisfied. And without individualized evidence, police are forced to rely on more readily available tools, like statistical profiles.

Then there are asset forfeiture laws, which give police an enormous incentive to grab drug suspects so they can seize and keep money and property. The Justice Department reports that local police and sheriff departments received nearly $650 million in "cash, goods, and property from drug asset forfeiture" in 1997. "If the police begin harassing every motorist in a particular locale, support for their activities will soon evaporate. However, if they can identify a minority group that is . . . not politically powerful, then the police can focus on those people" and fatten police-department coffers in the process. ( Gene Callahan and William Anderson, "The Roots of Racial Profiling," Reason, August-September, 2001 )

Here is what it all means: If we really want to end racial profiling, we have to address drug laws that encourage police to treat members of groups like criminals. And we have to redirect law enforcement toward solving specific crimes using the particular evidence available from the victims. In the context of ordinary crimes, anything less just invites profiling abuse.

But the terrorist context is different. In the terrorist context, the damage that could be prevented is measured in thousands of lives, the profiles are probably more effective in fingering guilty parties, and the likelihood is much less that abusive practices will be driven by institutionalized racism or by our unconscionable war on drugs.

That is not to say ethnicity by itself is sufficient justification for targeting a suspect. But sometimes ethnicity adds materially to the predictive power of a terrorist profile. Naturally, a vital consideration is the scope of the imposition on potentially innocent people. We should not object if law-enforcement authorities use ethnic profiling simply to limit their investigations. Even the questioning of profiled suspects raises few concerns if the suspects are free not to answer and free to leave. But subpoenas, custodial interrogations, and extended detentions are another matter.

With that qualification in mind, let me suggest one narrowly circumscribed example where terrorist profiling is entirely justified.

The Justice Department recently announced a manhunt for Middle Eastern men who have ignored their deportation orders. Each of the 6,000 targeted individuals, among 300,000 who have been ordered to leave the United States, is from a country with known al-Qaeda cells. Technically, the selection is based on nationality, but the correlation with ethnicity is obvious. Still, in this instance, the manhunt makes sense and it is constitutional.

Profiling may be objectionable if law-enforcement authorities use race or ethnicity as a substitute for suspicious behavior or other credible evidence to investigate, apprehend, and detain suspects. That is not what is happening. The men sought are not unidentified potential suspects, but named lawbreakers; not statistical artifacts, but real people. Their wanted status was triggered by their conduct, not by their nationality. The vast majority of Middle Easterners have nothing to fear from the Justice Department campaign, which involves no more than prioritizing scarce law-enforcement resources.

Although the Constitution guarantees equal protection to persons within our jurisdiction, there is no constitutional or statutory right for a lawbreaker to escape punishment. When persons break the law, some of their constitutional protections go away. And to the extent they still retain the right to equal protection, that right is not absolute. Government may treat persons unequally, even based on ethnicity, if it has a compelling interest in doing so and adopts the least restrictive means of satisfying that interest.

Here the profile is narrowly tailored to cover a small number of individuals from a few selected countries—only persons who have already been ordered deported. And the government's interest is palpable: to prevent terrorist acts that could injure or kill a huge number of Americans.

The terrorist threat demands that law-enforcement resources be deployed promptly and effectively. If those resources are spread too thin, government could default on its foremost obligation: to protect the nation against loss of life, our most precious civil liberty.

Now let me change the facts just slightly—still dealing with a real-world example, but this one cuts the other way. It is an example of ethnic profiling that, in my view, is not justified.

Under the Immigration and Nationality Act of 1952, the Department of Justice proposed new regulations (in June 2002) requiring more than 100,000 largely Muslim and Middle Eastern visa holders to register with the government and be fingerprinted. Students, workers, researchers, and tourists—all 18- to 35-year-old males from twenty designated countries—will be covered. That is, everyone except citizens and permanent resident aliens (who hold green cards).

Fingerprints will be matched against a database of suspected or known terrorists and wanted felons.

Here is how the program works. New arrivals will be fingerprinted at entry. They will have to register with the Immigration and Naturalization Service (INS) after thirty days, then each subsequent year. From a policy perspective, those new rules may be unwise or unnecessary, but they do not, in my view, raise constitutional concerns. Constitutional rights do not vest until a person enters the country. However, the same rules apply to non-permanent foreigners who are already here, legally.

The Supreme Court has not defined, with precision, the full rights of non-permanent legal aliens; but even illegal aliens are ordinarily entitled to due process unless trumped by national-security interests. The general rule is this: Any person who has developed a sufficient connection with the United States to be considered part of our national community—roughly, anyone here legally and voluntarily—is protected by the Constitution. When persons accept U.S. jurisdiction, they assume obligations and they are accorded privileges in return. Thus, to satisfy constitutional concerns, the government must show that its new rules, when applied to Middle Eastern students, workers, and tourists, are an effective and necessary answer to the systemic immigration problems that have compromised national security. That showing has not been made.

Essentially, there are four problems with our immigration system: (1) Applicants are not sufficiently screened. (2) They are not monitored closely enough after they are here. (3) They are allowed to overstay visas without penalty. (4) No one tracks their departure. The new regulations purport to mitigate those problems. But anyone truly dangerous will not show up for registration, or he will enter the United States illegally. And remember, the overwhelming majority of targeted persons are entirely innocent.

The new rules, because they apply to some but not all countries, raise equality problems as well as due process concerns. The selection of persons is based, not on misbehavior, but wholly on nationality. That is a clear example of unrefined profiling, which civil libertarians ought properly to condemn.

NATIONAL ID CARDS

Martin Anderson, former aide to President Reagan, writes of a cabinet meeting at which Attorney General William French Smith proposed a national ID card to curb illegal immigration. No ID, no job. Anderson caustically suggested an alternative that would be cheaper, lighter weight, impossible to lose, immune to counterfeiting or theft, even waterproof: Just "tattoo an ID number on the inside of everybody's arm." Naturally, Reagan understood the Nazi allusion and the idea was never again taken seriously—until now.

In the wake of the calamitous events of September 11, Representative Nancy L. Johnson (Republican of Connecticut) suggested a national ID using fingerprints or retinal scans. Senator Diane Feinstein (Democrat of California) reportedly supports the idea. And Harvard law professor Alan Dershowitz, a self-described civil libertarian, proposes a "voluntary" card with a chip that matches the holder's fingerprints. Dershowitz understands the potential incompatibility between national IDs and civil liberties, so he promotes his card as "optional."

Imagine Osama bin Laden's henchmen waiting to sign up for their IDs. That is about as likely as criminals volunteering to register their guns. Well, perhaps law-enforcement authorities will pass over "trusted" travelers who volunteer for IDs, then rigorously examine only people who refuse to volunteer. That is an interesting notion, but there are potential problems. Terrorists who are capable of destroying the World Trade Center are surely capable of obtaining forged IDs (even the high-tech variety), bribing officials who issue or check the cards, creating false identities that survive investigation, or using persons with legitimate cards to do their dirty work. Indeed, an optional ID system could lead to this worst-case scenario: Advance clearance or minimal scrutiny of fanatics bent on the destruction of American lives and property. Make no mistake: The failure of a voluntary system will lead to compulsory IDs.

Dershowitz disagrees. "It's a tradeoff between privacy and convenience," he says. Look at drivers who avoid long delays at toll booths by acceding to electronic billing, triggered by a device on their dashboard. Perhaps so. But the dashboard device affords a real choice: Give up a little privacy and save a lot of time. That is not what proponents of a national ID have up their sleeves. Their choice is: Give up some privacy by showing your card, or give up yet more privacy by subjecting yourself to surveillance, search, detention, or worse. If too few people go for the ID, the government will simply raise the ante, making its searches more insufferable until the ID is less repellent by contrast.

True enough, we use identification cards every day for, say, driving and check-cashing. But the primary purpose of a driver's license is to affirm that the holder is qualified to operate an automobile. And the essence of check-cashing is to prove that you are the payee. By comparison, neither specific skills nor a particular identity is required to engage in the majority of day-to-day transactions. We must not be compelled to "show our papers" every time we want to buy goods or services.

Yes, for security purposes, photo-IDs are already required at airports. If the national ID were limited to name, address, photo, even fingerprints, and its use were confined to airports, few would object. After all, passports must now be exhibited for all international travel, despite the obvious implications for ethnic profiling. But the ID scheme is far more insidious. First, the card will be effective only if scores of activities require its display. Terrorists are not stupid. They will select forums like theaters and sporting events, which are not easily protected. Consequently, the number of ID-restricted activities will increase, and the card will become more burdensome and invasive. Constraining its use means limiting its effectiveness. Expanding its use means violating more privacy rights. And you can rest assured that the ID will remain with us long after the need for extraordinary security has receded.

Secondly, a national ID would not have prevented the 9/11 terrorist acts. The terrorists were in this country legally, with all requisite paperwork. They had no fear of being caught because they did not expect to survive the atrocity. To prevent terrorism before it occurs, a national ID must be linked to a central database of personal characteristics and private records and transactions. That data will be maintained by the federal government, unlike information on car drivers kept by fifty separate states. The pressure to include ethnicity as a factor will be irresistible, thereby exacerbating the profiling problem. No doubt, government officials will make the case that the ID card and its linked database should not be limited to foiling terrorists. How about the drug war? Gun registration? Deadbeat dads? Child molesters? The potential for abuse is boundless. Keep in mind, it has been only a few years since Hillary Clinton urged a national health card containing our lifetime medical records.

If a national ID card is to be mandated, government must show there are no less invasive means of accomplishing the desired ends. That burden has not been met. Here, for example, is an alternative approach that would improve security while infringing far less on civil liberties: In a free society, individuals should not be broadly required to prove who they are. Yet it may be more tolerable to insist that they prove who they are not. That means a database of information on wanted persons (for example, escaped convicts and persons with outstanding arrest warrants or expired visas). A crosscheck against that database would identify only positive matches. No data would be collected or maintained on law-abiding citizens.

Naturally, the devil is in the details. What will trigger inclusion in the database? Where and when will crosschecks occur? What will the system cost? What oversight procedures will be implemented? What penalties will be imposed on government officials who abuse the system? Those questions have to be resolved. Still, limiting the database to "bad guys" is an option worth considering, with a healthy dose of forethought and vigilance.

To no one's surprise, the keepers of the data will promise confidentiality. Tell that to Japanese-Americans who were interned after U.S. census data were compromised during the 1940s. Tell it to taxpayers whose personal records were illegally snooped by Internal Revenue Service agents in the mid-1990s. Those events must vex Dershowitz, yet he asserts that no right to anonymity is "hinted at in the Constitution." Of course, that turns the Constitution on its head. The Ninth Amendment tells us that we have an untold number of rights that are not enumerated in the Constitution. The question is not whether we have a right to anonymity, but whether government has the power to take it away.

The Supreme Court has not delineated the extent of that power where national-security concerns are raised. When it comes to political writings, the Court said in 1995 that "anonymity is a shield from the tyranny of the majority.... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation." An extension of that doctrine to cover oral speech was tested during the 2001-2002 term. The Court decided that door-to-door canvassers for Jehovah's Witnesses cannot be required to display a permit with their name on it. To be sure, the right to anonymity is not absolute. But before stampeding toward a national ID, we should listen to Justice William O. Douglas, who cautioned a half-century ago: "To be let alone is indeed the beginning of all freedom."

CONCLUDING COMMENTS

I would like to close with a brief comment on a subject that is close to my heart and that underlies our main topic of civil liberties versus national security. That subject is the proper role of government.

From the Left, we are hearing expressions of distrust in government, ranging from the use of tribunals, to profiling, to other civil-liberties concerns post-9/11. That is welcome news to those of us who have long questioned the potential for abuse when government worms its way into every aspect of our lives. But where does the Left stand on government control over our retirement system, welfare, public schools, and the private economy? Why hasn't the Left's healthy distrust of government power extended to support for privatized Social Security, radical welfare reform, school choice, and elimination of regulations that control everything from the size of a navel orange to the shape of office furniture? Why can't liberals see past the Defense Department and the Justice Department when they bemoan excessive government power?

On the other hand, at the same time that the Left is suspicious of government, the hard Right argues that 9/11 justifies ever-more-powerful government, especially law enforcement. We need to be equally vigilant about that demand. In fact, 9/11 may have been the biggest failure of law enforcement in U.S. history. The federal government failed to provide for the common defense. Intelligence agencies were clueless about a plot by dozens of foreign nationals within our borders. The INS failed to keep terrorists from entering the United States and ignored its responsibility to document exits from the United States. With a $2 trillion budget and countless departments and programs, the federal government is already so immersed in our day-to-day affairs that it is distracted from performing its most essential function—to protect us from foreign assailants. It is time to re-focus government on securing individual liberty.

Robert A. Levy is a senior fellow in constitutional studies at the  Cato Institute . He received his Ph.D. in business in 1966 from American University and went on to found CDA Investment Technologies. In 1994, Levy received his J.D. from George Mason University, where he was chief articles editor of the law review. After graduating from GMU, Levy clerked for Judge Royce C. Lamberth of the U.S. District Court in Washington, D.C., and for Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit.  This article is based on a lecture Levy gave at TOC's 2002 summer seminar.

This article was originally published in the July/August 2002 issue of Navigator magazine.

‍