Campus comments:under the bridge photo:Les Todd

istorian Martin Miller teaches in the Master of Arts in Liberal Studies program, with class every Wednesday night. The fall semester had barely begun--just one class meeting had been held--when his course became at once completely altered and entirely essential.

Miller teaches "Foundations of Modern Terrorism," a class that, by the time of its second meeting on Wednesday, September 12, had become one of the most relevant on campus. "It was electrifying," Miller says. "That night, I just threw out the assignment."

One week later, the class continued to earn current-events credibility. A student who had returned from a day-long business trip to New York shared a story that captured the conflicting mood of a nation suddenly faced with the real meaning of rights and security. "He had a flight scheduled for Wednesday to go up to New York and come back in time for class," Miller recounts. "So he went to the airport on Tuesday, a day early, just to calm his anxieties and make sure that what he was taking on board could get through security.

"He had with him the course pack for my course, a big, thick, yellow binder with the title 'The Foundations of Modern Terrorism.' The minute they saw that, they asked whether he was planning on taking that along on the trip. And he said he was because he had an assignment and wanted to use the plane time to read--in fact, he had structured his work week so that was exactly the time he had to read it."

The security worker who had questioned the student "went away and came back with three guards, who proceeded to interrogate him--demanded that he show his Duke student card, prove that he was officially in this MALS course. They had all these questions. Then they went away and had a little chat and came back, and had decided the following. They had examined it and understood that it was just a book. He had these choices: He could leave the course pack at home, he could take it with him and put it in his suitcase under the plane, he could take it on board and put it in his carry-on, but it would have to be under the seat, stowed away."

"What he could not do was take it on board and read it, which upset him tremendously--he was still very upset when he was telling this to the class," Miller says. "For him, this was a case of infringement upon liberty. He didn't call it privacy; he called it liberty."

The class was also "appropriately upset with the forces of order and felt that his rights had been violated," he says. "But then someone said, suppose you sat down next to somebody on a plane and you saw them open up a big, thick, yellow binder called 'The Foundations of Modern Terrorism.' What would you think? And then it changed a little bit. Everyone got totally confused, because this is a gray area that you're talking about."

On a special episode written by Aaron Sorkin in response to the terrorist attacks and their aftermath, The West Wing was given over to this gray area between liberty and security, the conflict between the freedom to do as we please and the necessity to preserve our nation's safety

--both of which can be put in the category of freedom from fear. Most of the episode's dialogue was, not surprisingly, an impassioned defense of liberty and tolerance. But one character, press secretary C.J. Cregg, was revealed to be a staunch supporter of intelligence gathering and stronger national security measures. "Liberties, shmiberties," she responds to her more rights-minded colleagues. "We're going to have to do some stuff."

That "stuff," as originally envisioned by Attorney General John Ashcroft and sent to Congress not long after the towers' collapse, may have been seen as draconian by some. But in those first days, few raised cautionary flags. In fact, Newsweek reported that an initial request by Ashcroft was turned into an amendment and approved, giving law enforcement expanded license for what amounts to roving wiretaps, the installation of technology anywhere in the U.S. to capture information about telephone and electronic communications, with the approval of just one judge. "Within hours of the rushed vote," the magazine said, "the American Civil Liberties Union got calls from Senate offices asking, 'What did we just do?' Well, says the ACLU's Gregory T. Nojeim, 'they enacted an amendment that will basically function like a blank warrant. It writes meaningful judicial oversight out of the process.' "

The initial rush to reaction dovetails with history, says Scott Silliman, director of the law school's Center for Law, Ethics, and National Security. "After the Oklahoma City bombing in 1995, Congress went to the floor to debate what measures could be taken to change the laws, to change legislation, to give our law-enforcement agencies better tools for infiltrating terrorist organizations--roving wiretaps and the like. And there were overtures made that would have pushed our civil liberties too far. Wise minds prevailed. I would expect to see the same thing happen over the next several months on Capitol Hill, and hopefully the same thing will happen."

That first week saw several "overtures" like the request for broader wiretap and communications oversight powers. The Justice Department wanted congressional approval of unlimited detention of aliens if necessary. Senator Dianne Feinstein, a California Democrat, floated a proposal to keep international students out of the country for the next six months. And, as Newsweek reported, the Senate approved allowing the government to collect information about Internet customers' activities, from e-mail headers to downloads to where they surf on the Web. Few legislators could be heard trying to slow things down.

Dorm Response: Showing the colors photo:Les Todd

"Like most of us, I started thinking about these issues in the days following September 11, already hearing thoughtful people saying we must be prepared to sacrifice some of our civil liberties," said Duke law professor James Boyle at an October forum at the law school. "And I became more and more concerned over the succeeding days. Perhaps these measures are required, but all of the things which lead us not to discuss them thoughtfully should be dismissed immediately."

"Anything with a heart-tugging title immediately attached to it ought to cause us automatically to sit still and think twice," Boyle said. "The principal act is called Provide Appropriate Tools Required to Intercept and Obstruct Terrorism--that spells out 'patriot.' So if you're against it, then you're obviously not one. And I can tell you that the countries in which people started to talk about 'homeland security' have not been very happy afterwards--you can ask someone from South Africa, you can ask someone from the Soviet Union, you can ask someone from Nazi Germany. Appealing to 'the Homeland' in the title of an office is a device to short-circuit rather than to encourage thought."

Reacting quickly to the threat of future terrorism with specific legislation, Boyle said, was fraught with difficulty. "We don't know the extent of the future danger that we're guarding against, to a very clear extent. We don't know how effective any of those things that we're going to do will be in guarding against that danger, and we don't understand terribly well what is being done. And all of this was going at breakneck speed. This is not the way to do public discussion."

Then the pace slowed. The Senate's undebated passage of the resolution on the use of force against terrorism led Senator Robert Byrd, Democrat of West Virginia, to scold his colleagues: "The president has declared ours to be a nation at war with global terrorism. We have united behind him in this hour of crisis, but we remain mindful of the somber history of this nation, of the blood that has been shed over the centuries to protect and defend the ideals enshrined in our Constitution. We must, therefore, be as constant in our vigilance of the Constitution as we are strong in our battle against terrorism."

An unlikely coalition of interests began to be heard emphasizing concerns about the encroachment of national-security issues into the area of civil liberties. Representative Bob Barr, a staunch conservative Republican from Georgia, found himself in agreement with Maxine Waters and Barney Frank, who are among the more left-leaning Democrats in the House. Representative Dick Armey of Texas, another steadfast Republican, was quoted before the first series of votes on the Patriot Act as saying, "This is about how we equip our anti-espionage, counter-terrorism agencies with the tools they want while we still preserve the most fundamental thing, which is the civil liberties of the American people." And the website Time.com had perhaps the most vivid illustration of the diversity of the reaction against rubber-stamping Ashcroft's proposals; it reported that the 150 groups that came together around this issue to form an umbrella group, In Defense of Freedom, "may be the first umbrella that Phyllis Schlafly's Eagle Forum has ever shared with the National Gay and Lesbian Task Force."

As the weeks passed, the vigilance Senator Byrd called for--and thus a more thoughtful debate--came back to the fore, even to the point where partisan accusations began flying again between the very members of Congress who had joined together in a solemn and spontaneous rendition of "God Bless America." But time and serious debate, said Boyle, were exactly what was needed.

"What we had in front of us was a very, very, very, very bad bill, which, as it went through conference and was criticized by people on both sides, got a lot better," he said. Better, but to law professors and historians alike, still providing cause for concern.

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