History has much to teach us as we grapple with these issues. Miller points out that "this country's experience with terrorism does go back more than a hundred years," including the 1901 assassination of President McKinley by Leon Czogolsz, described by the White House website as "a deranged anarchist," and the 1920 bombing of J.P. Morgan's Wall Street bank, scars from which are still visible on the building. And the national experience of the conflict between security and liberty goes back more than a century before that.

"Our history is not comforting when we think about the degree to which we have overestimated security threats and been too willing to jettison civil liberties," Dellinger said at the forum. "I think of the Alien and Sedition Acts [in 1798], when we thought we saw enemies of the Republic in people who had a different view of what the emerging government should be. The horror of the Japanese internment being upheld for Americans of Japanese ancestry in the case of Korematsu [a 1944 Supreme Court decision affirming that a Japanese American named Fred Korematsu had violated the law by trying to evade that mass detention]. And one of the most humiliating, destructive, and indefensible events in American history--the wiretapping of Dr. Martin Luther King and the use of those wiretaps by officials and agents of the United States government to try to influence the activities of the civil rights movement."

At the same time, he said, terrorism is a legitimate threat, one that came frighteningly close to succeeding even before September 11. "We stopped them from blowing up the Los Angeles airport on the Millennium. We stopped the destruction of the Statue of Liberty," he said. "We forget how close these attempts came. The only thing that has stopped it is infiltration and surveillance. We have to move into a century where our ability to trace and monitor activities takes precedence."

The effect on civil liberties is mitigated, Dellinger said, if the intrusion reaches everyone. "I would try to begin by being more skeptical and more concerned about any of the proposals that adversely affect some of us more than others, and more willing to consider proposals that seem to affect all of us in a more but never perfectly equal fashion. I'm far more willing to consider issues that sacrifice all of our privacy a bit, because at least we're all in that more or less together."

Other legal scholars, including Boyle and Culp, seem not quite as ready to accept new monitoring and surveillance methods as Dellinger. "I've seen very little in the reform bills for imposing penalties on people for the misuse of the information that they get from these policies," said Culp. "It is absolutely necessary that the police and the FBI and the agents and everybody else involved in this process not be able to abuse this process. If we don't impose penalties, there will be abuse."

Patriotism: A Floral Tribute photo:Greg Altman '95

"On this, Walter and I fundamentally disagree," Boyle said. "The National Security Agency model of information-gathering, which applies to all communications that go outside the United States--though not, we are told, to those that go within--is basically to gather everything and hope that at some point technology will catch up and allow you to actually process it. I'm not sure which I'm more frightened of--the blindness that believes that this kind of mass sacrifice of everyone's privacy will actually do any good, or the fear that the technology might actually catch up, so that it would allow large-scale processing. Both, to me, seem equally scary.

"The great wish after this horrible thing is for us to sacrifice, and hope that by sacrificing, we somehow make the future happening less likely. Sacrifice something--blood, our money, our privacy. Giving blood or money may do some good--but giving up our privacy, I fear, will do none."

The actual "giving up" of privacy might seem a quaint notion to someone who accepts "cookies" on the Internet, calls a friend with caller ID, or stays on the line after hearing a taped voice saying "this conversation may be taped for quality purposes." While privacy does need continued protection, even as it changes, Miller points out that today's idea of privacy is vastly different, like it or not.

"The notion of privacy has disappeared from American life in the ways that it once existed," Miller says. "Nobody seems to realize that we have voluntarily surrendered that level of liberty to degrees that the Soviet Union, in its day, would never have been able to imagine, let alone been able to do."

A recent New York Times article on the new government measures quotes a Coloradan as saying, "Let them try to make me sign up for a national ID card--I dare them." Miller's brief laugh about the quote is a bit rueful as he ticks off all the ways Americans can be identified, from Social Security cards and driver's licenses to computer-use tracking. "It's already out there," he says. "It's done."

How can the need for security be reconciled with the need for liberty? Civil libertarians--even as they recognize the need for security--are leery of government intrusions. And yet, they look to the government for the answer.

"We need to make sure we have high-level judicial approval," said Dellinger at the forum. "We need to make sure the ends really justify it--looking at Monica Lewinsky's book records is not as justified as looking at the book records of someone who was looking at books about fertilizer bombs at the time of Oklahoma City, and yet some prosecutors didn't see that there was a difference there."

"Let me throw out a series of principles," Boyle said. "Avoid the demonization of new technologies--these are not automatically good or bad, and we need technology people as well as law people to analyze them. Beware of the outliers not in the main bills that are subject to scrutiny. Beware of the fact that other forces are not above using this terrible tragedy to get what they want--the Critical Infrastructure Protection Act allows private industries to disclose to the government any computer-related standard system or network--and thereby to receive anti-trust immunity--on the theory that this will help law enforcement deal better with some of the threats to that technology. I imagine any number of computer companies might think this is a simply wonderful thing, for reasons unconnected to their deep concern for national security.

"Finally, don't trust judges to be the backstop for all this. Justice [William] Rehnquist and Judge [Richard] Posner have both said, in 2001, that they believe Korematsu to have been correctly decided."

William Van Alstyne insists that sunset provisions are critical additions to any laws passed, requiring Congress to vote to re-authorize the legislation or watch it automatically expire. "These laws tend to linger beyond the emergency that may either authentically or emotionally have been an adequate justification," he says. "A sunset provision is just a providential prophylactic--if the conditions persist, re-enact it. But force the point where you have to consider it again."

That point was indeed forced when the House passed the Patriot Act with a five-year sunset provision--although the Senate's version, the Uniting and Strengthening America Act of 2001, called for leaving the legislation in place unless it was overturned. Overall, calmer legislative heads seemed to prevail, at least when compared to the initial series of requests from the administration.

That calm must extend to recognizing not only the need to protect liberties, but also the fears and threats that Americans face in a nation that went through a wrenching change one September morning. Van Alstyne says there are some sacrifices that can be made in both areas. "We're giving up privacy, which was never 'a right,' if the government wanted to move. Would we willingly yield? I think we should willingly yield to the extent that these measures seem well calculated to provide that minimum degree of security which now seems very important to try to restore.

"Not to would be like saying in World War II, 'Well, I don't want to give up my freedom in the sense that I want to continue to drive my car every weekend. I mean, gee, beating the Japs isn't worth giving that up--what is it to be free in California

if you don't drive your convertible?' You're not worrying about civil liberties. You're just fundamentally selfish. We're giving up what used to be an easier lifestyle--but I don't make anything of the rhetoric at that level of antagonistic banality."

"If we simply oppose every outrageous proposal that is made to secure our safety, we run the risk in the long run of losing our civil liberties by making them appear to be in opposition to safety and security," Coleman said at the forum, advocating careful discourse. "Those of us who care about civil liberties have an obligation to make civil liberties relevant to the reality with which people are struggling. We do this by engaging in the effort to provide security by seeking rules that also protect individual rights."

"So far, I think we've been pretty level-headed," Miller says. "Ashcroft cannot push his legislation through as quickly as he'd hoped he would, and that's one of the encouraging signs of the democratic process. In each of the [historical] instances that I know of, the resiliency of the issue of rights being paramount has won out over the issue of having to have security at the expense of rights.

"When the equilibrium is not being terribly disturbed, I think the tendency of the country is to go back and settle on liberty at the expense of security. But the challenge now is a new one, because we don't know how soon this is going to be altered."

The Duke libraries have created a comprehensive website devoted to the campus-based forums on terrorism and related resources. Among the themes are the morality of war, historical perspectives, and the technologies of counterterroism. The address is www.lib.duke.edu/forum.