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eBook details

• Title: Answering the Critics of the Legal Case for the War on Terror (The Federalist Society National Lawyers Convention - 2007: American Exceptionalism)
• Author : Harvard Journal of Law & Public Policy
• Release Date : January 22, 2009
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 288 KB

Description

A policy argument often advanced by critics of the Bush Administration's legal policies with respect to the War on Terror is that civil liberties today are being unnecessarily sacrificed on the altar of public safety. (1) This claim usually has two dimensions. The first is that the pre-September-11 balance between liberty and public safety was just right and that any effort to tilt it toward the order side of the ledger is unnecessary or inappropriate. (2) This claim is mystifying. In principle, I trust we all agree that liberty and public safety are balanced differently in peacetime than in wartime. (3) It would follow then, that if the peacetime, pre-September-11 balance were sufficient for handling the exigencies of today, then that balance was way off, too harsh, and not sufficiently protective of individual liberty. Indeed, after the decades of the Warren and Burger Courts' veritable rights revolution, to argue that the pre-September-11 balance was not liberal enough is, to put it mildly, not credible. There is, of course, the notion, advanced by some critics, that this is not a real war, but here again, the facts do not support it. The second dimension is the assertion that, whatever the government is seeking, be it data mining, information on airline passengers traveling to the United States, or intercepts of telephone conversations and related activity, it would not really enhance our security, but would merely swamp the government with vast amounts of useless data. (4) Indeed, government is not very good at analyzing and integrating data, but we have to take the government as it is: clumsy and relatively inefficient. Yet, just as the inherent inefficiencies in defense procurement and waste and mismanagement in the Defense Department are not particularly good reasons for refusing to spend money on a first-class military establishment, the same is true for the rest of the government.

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