to Terrorism Symposium
September 13, 2001
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is a Professor in the Law School who is an expert on constitutional
law and civil liberties and individual rights. He is a member of
the Board of the American Civil Liberties Union and consults for
organizations such as the Lawyers Committee for Civil Rights under
Law, the Mayor's Committee on the Homeless, the Juvenile Law Center
and the Women's Law Project. Professor Kreimer is the winner of
numerous teaching awards including the Lindback Award for Distinguished
Teaching at Penn.
we come together at a time when our society has been horrified by
an attack on the United States, unprecedented in my lifetime, almost
unprecedented in our history. America has been wounded; we mourn,
we rage, we demand a response. I have no doubt that our response
will and should come, and when it comes it will and should be forceful,
sustained and effective.
hope in these minutes is to raise with you the concern, rooted both
in my commitment to our constitutional values and in my study of
our constitutional history that America's defense should not come
at the cost of the very ideals that make it worth defending. Let
me briefly address three sets of concerns arising out of our commitments
to equality, to liberty and to individual dignity.
is a nation of immigrants, and a nation as Lincoln said, "dedicated
to the proposition that all are created equal." Yet in time of war
there is a temptation to forget this dedication. When the enemy
is faceless, we are tempted to see the enemy's face in those who
resemble him. It is alluring to group people, to say there is no
time to deal with them as individuals and to condemn them wholesale.
Those who perpetrated the barbarities of September 11 made no nice
distinctions among their victims; it is inviting to say that in
time of war we should make no nice distinctions either. And, there
is another often subconscious dynamic: when our anger demands vengeance
it is tempting to take that vengeance vicariously on those who resemble
America has been down this road before. In the months after the
attack on Pearl Harbor, impelled by fear of imminent invasion and
anger at barbarous attack and the belief that there was no time
to make nice distinctions the American military rounded up 120,000
Americans of Japanese origin and imprisoned them in internment camps.
The claim, accepted by the Supreme Court in Korematsu v. US (1945)
was that by virtue of their ethnic origin, the military could predict
that some of these Americans were likely to pose a danger of disloyal
action and that "under conditions of modern warfare when our shores
are threatened by hostile forces, the power to protect must be commensurate
with the threatened danger." Yet even at the time, there was a sense
by some that our freedom had been overwhelmed by our fear; as Justice
Murphy's dissent pointed out, the official report justifying the
detention announced in part that "The very fact that no sabotage
has taken place to date is a disturbing and confirming indication
that such action will be taken." That sort of logic persuaded Justice
Murphy that the military had gone "over the brink of constitutional
power and into the ugly abyss of racism". Time has vindicated Justice
Murphy; in 1988 Congress passed a statute officially apologizing
to the survivors of the internment and awarding them reparations.
is reason to hope that we will not need to apologize for our behavior
in today's crisis; for we are a more tolerant society and truer
to our ideals of equality than we were in 1942. Our allegiance to
the obligation to treat each individual with equal respect, to reject
the imposition of ethnic stereotypes is announced by attacks on
racial profiling from the left and by attacks on racial preferences
from the right. Those announcements provide guidance when we are
tempted to turn on our fellow Americans, to bar them from jobs or
public transportation or free movement for reasons of " security."
So on this front I am hopeful.
is also a nation as Lincoln said "conceived in liberty". Freedom
to differ, freedom to criticize, freedom to call the government
to account has stood at the root of our self-conception. Yet in
time of war, it is all too easy to equate difference with disloyalty,
to sacrifice dissent and free information on the altar of military
necessity. We have already heard calls to curtail the flow of information
to the public on pain of criminal prosecution, and we will doubtless
hear suggestions that those who associate with critics or dissidents
should be shamed or shunned or surveilled or controlled. The difficulty,
as Justice Powell observed during the Vietnam war is the "tendency
of government--however benevolent and benign its motives--to view
with suspicion those who most fervently dispute its policies." We
cannot always rely on the courts to save us from ourselves in this
regard. During the Civil War, Americans were imprisoned without
trial for criticizing military strategy; during World War I Americans
were prosecuted for questioning the motives of their leadership
or the legitimacy of the draft; during the Cold War and McCarthyism,
Americans were denied employment because of their associations and
investigated for their beliefs.
here, too we may have advanced as society, for we are more open
and have more faith in our resilience than we did a century ago.
And, amid the judicial failures in war time, we also have landmarks
that guide us to our principles. In 1943, in the midst of America's
struggle for survival in World War II, the West Virginia Board of
Education demanded that every child begin the day with a flag salute.
When the Barnette family out of their principles as Jehovah's Witnesses
refused they found themselves haled into court, in a case that ultimately
reached the Supreme Court of the United States. Justice Robert Jackson,
the former Attorney General, acknowledged the importance of patriotism
in time of war, but held for the Barnettes. His words are worth
recalling. He said:
is no mysticism in the American concept of the State or of the
nature or origin of its authority. We set up government by consent
of the governed, and the Bill of Rights denies those in power
any legal opportunity to coerce that consent. Authority here is
to be controlled by public opinion, not public opinion by authority.
case is made difficult not because the principles of its decision
are obscure but because the flag involved is our own. Nevertheless,
we apply the limitations of the Constitution with no fear that
freedom to be intellectually and spiritually diverse or even contrary
will disintegrate the social organization. .... When they are
so harmless to others or to the State as those we deal with here,
the price is not too great. But freedom to differ is not limited
to things that do not matter much. That would be a mere shadow
of freedom. The test of its substance is the right to differ as
to things that touch the heart of the existing order.
there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics,nationalism, religion.... If there are any
circumstances which permit an exception, they do not now occur
temptations to curtail the freedom of speech and association that
makes democracy work in the coming days will not come from ignoble
motives. They will come from fear and a properly high concern for
the safety and future of our country.
good motives are not enough, and there is reason to hope that we
will remember Justice Robert Jackson rather than Senator Joseph
McCarthy. In the modern era, our regard for freedom to differ has
protected protesters who burn the American flag, notwithstanding
the costs to patriotism just as it has protected Boy Scouts who
exclude gay leaders notwithstanding the costs to equality. We have
sustained these costs and grown as a society; when we are asked
to trade liberties of speech and association for the perceived necessities
of the coming days I am optimistic that we will remember that we
can sustain costs in order to retain our freedom. Finally,
let me say a word about privacy. Seventy years ago, in the midst
authorities struggled against what was perceived as a widespread,
covert and insidious evil: the illegal sale of liquor. In response,
they deployed what was then a modern investigative technique: the
wiretap. Justice Louis Brandeis --dissenting at the time--did not
dispute the proposition that the wiretaps were effective, he raised
questions however about the degree to which America's constitutional
order permitted them to be deployed without judicial oversight.
As he put the matter,
makers of our Constitution....recognized the significance of man's
spiritual nature, of his feelings and of his intellect. They knew
that only a part of the pain, pleasure and satisfactions of life
are to be found in material things. They sought to protect Americans
in their beliefs, their thoughts, their emotions and their sensations.
They conferred, as against the Government, theright to be let alone--the
most comprehensive of rights and the right most valued by civilized
men. Experience should teach us to be most on our guard to protect
liberty when the Government's purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty
by evil-minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without understanding.
Today, the threats with which we struggle make the dangers of
the speakeasy or gin mill quaint, and Justice Brandeis' choice seems
in retrospect an easy one. By contrast, the dangers we face from
terrorism go to the root of civilized society. If we cannot go to
work without fear of fire from the sky, our right "to be let alone"
will be of little value. Yet the investigative resources at the
disposal of the government today dwarf the capacities of the government
in Justice Brandeis' time, and it seems to me that we must take
care with the structures we put in place in response to this crisis,
for we will live with them for years into the future Whatever sacrifices
we make must be measured ones, and as Justice Powell put it in rejecting
the claim of President Nixon for an uncontrolled right to wiretap
in the interests of national security "the price of unlawful public
dissent must not be a dread of subjection to unchecked surveillance."
have been attacked and that attack has been made easier by the openness
of our society; we have been put in fear and that fear is more difficult
to dispel because of our idealism. But that openness and that idealism
are the basis of our strength and our hope; we must not purchase
today's peace of mind by abandoning the liberty of our future.
to SAS Symposium on Terrorism Introduction
(click on names below)
Almanac, Vol. 48, No. 4, September 18, 2001
September 18, 2001
Volume 48 Number 4