The War on Terrorism and Civil Liberties

Throughout American history, we have grappled with the problem of balancing liberty versus security in times of war or national emergency. Our history is littered with sordid examples of the Constitution's silence during war or perceived national emergency. The Bush Administration’s War on Terror has once again forced a reckoning requiring Americans to balance liberty and national security in wartime. President Bush has stated, "[w]e believe in democracy and rule of law and the Constitution. But we're under attack.” President Bush, Attorney General Ashcroft and other governmental leaders have argued that in war, "the Constitution does not give foreign enemies rights," conveniently forgetting that the enemy in this war is amorphous and that our constitutional rights are important precisely to ensure that the Executive Branch is not the sole prosecutor, judge and jury of who is and is not an enemy terrorist. Since September 11, 2001, there has been a dramatic, and in some respects unprecedented, expansion of Executive power, as yet unchecked by the judiciary or Congress, increasing government secrecy, and attacks on the most vulnerable members of society—immigrants. This article explores the perennial conflicts that arise between civil liberties and national security during wartime in the context of the post-September 11 War on Terror and takes issue with those who would acquiesce in the Bush Administration’s significant departures from traditional American ideals of justice and fairness as necessary emergency measures