Benchmarks:capturing Old Glory photo:Les Todd

Christopher Schroeder, professor of law and public policy studies, director of the Program in Public Law, and co-chair of the Center for the Study of Congress, opened the law school forum by noting that regardless of the final form of new laws, the process of passing those laws should have brought new depth to the public conversation. "Notwithstanding the movement on the legislative front," he said, "there remains a number of pressing issues and concerns that are regularly raised in times of national crisis, and the question is to what extent normally expected civil liberties ought to be adjusted and modified in the face of what is considered to be exigent circumstances."

The forum's first official speaker, former U.S. Solicitor General and current Douglas B. Maggs Professor of Law Walter Dellinger, labeled himself "as confused as anyone else" by the question. "How should we respond when we feel this conflict between the civil liberties we have cherished and the security that we believe to be essential?"

"I think we're confused because all of our various paradigms or models seem to be conflating in on one another," he said. "We've kept separate, for example, the area of war and the area of domestic law enforcement--of our criminal justice system, of due process, of trial by jury and the right to confront one's accusers, the safeguards about the techniques for gathering evidence. And when these two spheres of war and criminal justice come so much into conflict, and we're not sure which one we're in, we face maximum confusion about what the standards even are that we're looking for."

The notion that security is essential is acknowledged by even the most ardent civil libertarians. "It would be foolish to ignore the fact that somebody has attacked us, that there is some group out there that is very well organized, extremely efficient, and has a mission to accomplish," historian Miller says. "It's ridiculous not to consider that some measures have to be taken, which is why the issue of security is as real as it is."

Duke law professor James Coleman came to the law school forum just a few hours after a death-row client of his facing imminent execution received the first-ever sentence commutation from North Carolina Governor Mike Easley. "In defending civil liberties, we can't ignore the legitimate concerns that people have about safety," he said. "We can't afford to defend individual rights simply by criticizing and opposing the things which threaten us. We have to realize that people today are genuinely afraid for their safety, and that their fear is legitimate."

"It would be an outrage to justice if the people who committed these crimes went unpunished," Boyle agreed. "The difficulty is in thinking about how to do that, and how, in the process of doing it, not to lay seeds for future crimes of equal gravity."

Addressing legislative proposals one by one, in a timely but careful fashion, was a near-unanimous solution for the panelists. "What we have to do is keep our heads about us," Dellinger said. "The biggest mistake we could make is to assume that we're either for all of these things because we're patriots and we want to defend the national security of the United States, or that we're civil libertarians and have to of course reject any of them. We're entering into a time when we have to think about each one quite carefully and without preconceptions."

"There's no abstract way of solving this. The way to solve this is point by point, proposal by proposal, instance by instance," said Boyle. "You have to go through all those punctilious details in order to figure out what sorts of trade-offs you are willing to make, because many of the biggest threats to our privacy are not actually in this law at all."

"Rather, it's in the effect that laws like these have on the social consensus, on making pervasive surveillance--like the cameras that are watching us now--seem normal," he added, referring to the live webcast of the forum. "When pervasive surveillance and DNA testing and biometric testing come to seem normal, we move into a different society. Our understandings become different, informal understandings, and much of it never rises to the level of law."

Those informal understandings occur bit by bit, as technology advances and as society not only allows but accepts and even embraces measures that can be double-edged. Law professor and constitutional scholar William Van Alstyne looks to the relatively new idea of red-light cameras, which capture the license plates of red-light runners, as an example of the peril of progress.

"Data has already been collected on us," he says, expressing concern about whether the film records from the red-light traps are kept or reused. "Wherever we use a credit card, wherever the ATM machine is used, whenever you rent a videotape. These tell-tale electronic tracks can easily be aggregated into commercially interesting profiles and government profiles.

"It's like cameras in stores. It's like cameras in the place of employment. It's like the camera in the women's fitting room. It's like the employer who reserves the right to monitor your computer, and they find out where you've been. The Orwellian totality of it can reduce it to this feeling that, well, we all want to be safe, and we're grateful to have these devices here in the public trust. It may discourage the stalker or the mugger, so we should be happy.

Vigils: American votives photo:Greg Altman '95

And I'm so pleased to open my suitcase, because everyone else is."

"There is a change in the characterology of the culture that will ultimately produce a more Orwellian, cowed population," he says. "Even if the government does not act perniciously, there is a demoralization of the spirit that comes from having a publicly recorded life."

Another danger that arises from a society willing to accept such intrusions into personal liberties is the acclimation to intrusions against others. At the forum, law professor Jerome Culp expressed deep concerns about racial profiling, which has now been extended from African Americans to Arab Americans. Culp quoted a columnist from The New York Observer as saying, "who doesn't wish that there was some form of racial profiling on airline passengers?"

"One of the points that that quote suggests to me, in thinking about where we are as a society, is that we are trying to take a series of important civil rights off the table," Culp said. "We can't talk about racial profiling now, because security is so important. It's so important, we cannot even get to that question."

Coleman spoke to the same point, even admitting to listening to radio talk-show host Don Imus to drive his message home. "In the last couple of weeks, there has been a lot of discussion on the program about whether, in light of the events of the last month, racial profiling should be reconsidered--at least for people who might be terrorists. The answer is that racial profiling is wrong whether the profiling is directed at African Americans or Arab Americans.

"I've often had the experience that all black men have had of being in an elevator and having people physically react to our presence, out of fear of what we might do there. But I've never been asked to leave an elevator to allay the fears of such people. It is understandable that some of us would be concerned if we found ourselves on a cross-country flight with four or five young men on their way to Los Angeles for a meeting of the law student division of the Arab-American Bar Association. But really, the question is whether it is in any way defensible that they should be asked to leave the plane in order to allay our fears."

"I didn't understand, growing up after World War II, how we could have put the Japanese in internment camps," Culp said. "But when I woke up on September 12, and I listened to my fellow citizens and I listened to my fairly liberal 'Critical Race Theory' class, I understood that we're only two or three terrorist incidents away from doing it again."

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