Constitutional Democracy Colloquium

Has the Bush administration properly balanced security and liberty? Let’s address this question through two routes.

1. When national security is threatened, any nation is likely to reduce liberty in some way. Abraham Lincoln suspended habeas corpus. During World War I, Congress restricted freedom of speech, prohibiting any expression “advocating or urging treason, insurrection, or forcible resistance to any law of the United States.” During World War II, Franklin Delano Roosevelt supported the internment of Japanese-Americans on the West Coast.

By historical standards, the Bush administration has acted with considerable restraint and with commendable respect for political liberty. It has not attempted to restrict speech or the democratic process in any way. The much-reviled and poorly understood Patriot Act, at least as administered, has done little to restrict civil liberty as it stood before its enactment. The government has not engaged in large-scale discrimination against any group of American citizens. To his credit, the president has spoken eloquently about the need to respect people of all religions and nationalities; his administration has worked hard to prevent discrimination against Muslims.

Of course the record is not perfect. Some immigrants have been inconvenienced or worse. The detentions at Guantánamo Bay have been especially troubling, above all because of the absence of fair procedures to ensure that those who are detained really are enemy combatants. Fortunately, the U.S. Supreme Court has required such procedures, repudiating the Bush administration’s legal claims and concluding that detainees have a right of access to federal court to challenge their detentions. The Bush administration has also asserted the right to detain American citizens as enemy combatants, and here the Supreme Court has again replied that fair procedures are required. One of the Bush administration’s low moments was its August 2002 memorandum, from the Department of Justice, suggesting that the president has the authority to torture suspected terrorists-authority that Congress has no legal power to override. Purely as a technical matter, this was a weak and unconvincing analysis. Much worse, unconscionable abuses of foreign prisoners have not been adequately controlled.

Taken as a whole, the record of the Bush administration isn’t at all bad by historical standards. There has certainly been no serious attack on political liberty or constitutional democracy.

2. But let’s step back a bit. What’s meant by “security” and “liberty,” and what do we mean when we speak of seeking a “balance” between them? Consider the distinctive approach of an American president the last time that national security was threatened. On January 11, 1944, Franklin Delano Roosevelt, with victory in World War II in sight, insisted that “The one supreme objec...