It Really Is Necessary to Balance Security and Civil Liberty Protections in The War On Terrorism

By Victor Comras

As 2005 draws to a close, a great public debate has opened here and in Europe over the powers we have placed in our governments' hands to combat terrorism. There is a growing public perception that some of these measures are being abused and that, if left unchecked, they could have a nefarious impact on our civil liberties and rights to privacy. Revelations of renditions and secret prisons, questionable interrogation techniques, and non judicially mandated phone taps have served to heighten these concerns. The debate isn�t so much about whether certain special measures are needed to fight terrorism � of course some are needed -- it is about the appropriateness and effectiveness of the measures actually being used and about the need to subject such special measures to special oversight, control, and accountability.

My distinguished colleague and fellow expert Dennis Lormel worries below that the Senate�s hesitations over certain Patriot Act provisions sends the wrong signal to the terrorists and inhibits our ability to fight terrorism. I disagree. Current Patriot Act authorities will remain in place, in any event, with regard to on-going investigations and for new investigations linked to alleged past terrorism-related activities. That gives us sufficient leeway for a true debate on the correct balance between security, civil liberties and privacy. And why should our law enforcement officials ever fear the usual judicial oversight and accountability requirements to which they are so used to in other areas of law enforcement?

I, like a growing number of other Americans, am concerned that the lack of oversight and control, and the absence of judicial involvement and review is having an international stigmatizing effect on our efforts to deal effectively with terrorists and terrorism. President Bush maintains that such judicial oversight would place unwarranted constraints on the Executive branch's ability to safeguard Americans and that they are unnecessary. But he has not substantiated that such is the case. It is precisely because such oversight and control is lacking that we are forced to explain away questionable interrogation techniques in Abu Ghraib, Guantanamo, and elsewhere; why questions have arisen about our practice of rendition; and why secret monitoring of American phone conversations by the NSA doesn�t merit special judicial authorization. (and what�s the downside of using the special measures envisaged by the 1978 Foreign Intelligence Surveillance Act that provide for special judicial panels for such review purposes).

The lessons of history should make us all wary of claims to unfettered executive investigative authority. Congressional and Judicial oversight has always provided us with the protections that are essential to preserving our cherished liberty. That explains the stubborn opposition in the Senate to renewing several Patriot Act provisions, and to increased public insistence in Europe that the new EU counter-terrorism measures be accompanied by adequate oversight and control procedures.

TrackBack