More on Balancing Security and Civil Liberty Protections: A Response to a Colleague

By Victor Comras

The debate over the appropriate balance between security and civil liberty protection to which I referred in my previous posting goes well beyond the Patriot Act issues still under review in Congress. It touches on broader issues that effect our system of justice, the way we defend ourselves, and the values we keep. And, there is also the question of the precedents we set for ourselves and for others. The Patriot Act is a small, but essential part, of this critical debate.

I agree with my dear colleague Andrew Cochran that the Patriot Act is complex and misunderstood. Its provisions have strengthened law enforcement's ability to protect us from terrorist attacks and to investigate terrorism-related activities and it has served us well. But, congress and the public recognized from the beginning, when the Patriot Act was first enacted, that it contained several controversial measures including expanded investigative powers unfettered by traditional controls that could cause concern. A sunset provision was attached to the act precisely for this reason. Congress is now engaged in a debate over the acts strengths and weaknesses. I believe this is a necessary and healthy debate, while Andy and some of my other colleagues apparently believe this is a debate we cannot now afford. I do not, and cannot say that the provisions of the Patriot Act have been abused. How could I know? It is the potential for abuse that raises the concern. And if this potential can be reduced without sacrificing security shouldn't this be done?

Like it or not there is a wide public perception here and abroad that the powers being exercised by our government are too intrusive and that the absence of effective oversight and control is leading to abuses. This debate is likely to intensify during the coming year and we will have to engage these public perceptions. That debate goes well beyond the Patriot Act provisions and includes the issues of rendition, acceptable interrogation techniques, secret prisons and "spying on your own citizens." Some of these measures may be acceptable some of the time -- but that decision must be subject to oversight and accountability . And our system of checks and balances has always entailed judicial and congressional oversight of executive actions.

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