Notre Dame Journal of Law, Ethics & Public Policy Volume 19 Issue 1 Symposium on Security & Liberty Article 13
February 2014
Homeland Security and Civil Liberties: Preserving America’s Way of Life Daniel W. Sutherland
Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp
This Essay is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected].
Recommended Citation Daniel W. Sutherland, Homeland Security and Civil Liberties: Preserving America’s Way of Life, 19 Notre Dame J.L. Ethics & Pub. Pol’y 289 (2005). Available at: http://scholarship.law.nd.edu/ndjlepp/vol19/iss1/13http://scholarship.law.nd.edu/ndjlepp/?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp/?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp/vol19?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp/vol19/iss1?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp/vol19/iss1/13?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPageshttp://scholarship.law.nd.edu/ndjlepp/vol19/iss1/13?utm_source=scholarship.law.nd.edu%2Fndjlepp%2Fvol19%2Fiss1%2F13&utm_medium=PDF&utm_campaign=PDFCoverPagesmailto:[email protected]
HOMELAND SECURITY AND CIVIL LIBERTIES: PRESERVING AMERICA’S WAY OF LIFE
DANIEL W. SUTHERLAND*
Together we will answer history’s call to protect America and pre- serve our way of life.’
-Tom Ridge, Secretary of the Department of Homeland Security (2003-2005)
INTRODUCTION
America is at war. A small group of extremists have declared, most demonstratively on September 11, 2001, that they are dedicated to killing Americans and attacking our society at every opportunity. We are aggressively taking the war to them, and thousands of the enemy’s combatants have been removed from the battlefield. The war on terror presents America with unprecedented challenges and dangers. Yet it also presents us with opportunities-to make needed adjustments to our national security, to see people of good will banding together as never before, and to see a recommitment to our basic roots as a people and a culture.
A critical element of the war on terror is the protection of our homeland against those who would do us harm. An effective homeland security strategy means that America must come to grips with a full spectrum of security challenges. We must secure air travel, including screening passengers before they board air- planes, stationing air marshals on selected flights, and securing cockpit doors. We must secure our borders, making accurate determinations about whether those who seek to visit our coun- try have a history of criminal or terrorist involvement and assur- ing that those who apply for student visas are in fact carrying out their stated academic pursuits. We must disrupt the terrorists’ financial pipelines and protect our own economy in spite of the
* Mr. Sutherland was appointed by President Bush to be the first Officer for Civil Rights and Civil Liberties at the U.S. Department of Homeland Secur- ity. He is a graduate of the University of Virginia School of Law and the Univer- sity of Louisville.
1. Press Release, U.S. Department of Homeland Security, Remarks by Secretary Tom Ridge at DHS Employees Event in Selfridge, MI (June 19, 2003), available at http://www.dhs.gov/dhspublic/display?content=1 036 (on file with the Notre Dame Journal of Law, Ethics & Public Policy).
290 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
risks of attack and the costs of increased security. We must ensure that chemical and nuclear plants and other critical ele- ments of our national infrastructure are protected. We must ensure that large public gatherings, such as sports and political events, are secured. Through the work of the Department of Homeland Security, significant progress has been made in all of these areas.
But one of the greatest challenges brought on by the war on terror is to ensure that, while we increasingly secure our nation from terrorist attack, we also preserve America’s way of life. Our core mission at the Department of Homeland Security is not just to protect America’s tangible assets-our buildings, airports, and power plants. Rather, it is to protect America and our way of life, including the freedoms of speech, press, worship, assembly, and many other principals that form the foundation of our country.
Every legal argument requires an analysis of facts and then of law. In this article, I will argue that we must make policy with a clear understanding of the facts and of the unique challenges placed upon us in the twenty-first century. I will then argue that we must make policy with a re-energized understanding of the foundational principles entrusted to us by our Founders in the eighteenth century. In particular, we must understand the prin- ciples that the Framers aspired to-and the political and military contexts in which our Founders laid out those principles-which have always guided our nation and provided inspiration to peo- ple around the globe. In short, we must look ahead to the threats we face while also redoubling our efforts to understand and appreciate the liberties upon which our nation was built.
I. THE CHALLENGE OF RECOGNIZING THE NEW THREAT
On September 11, 2001, America learned that it is under attack by “an enemy who is sophisticated, patient, disciplined and lethal.”‘ In the words of the 9/11 Commission: “[This enemy’s] hostility toward us and our values is limitless. Its purpose is to rid the world of religious and political pluralism, the plebiscite, and equal rights for women. It makes no distinction between military and civilian targets. Collateral damage is not in its lexicon.”3
In an interview with Al Jazeera television a month after the September 11 attacks, Osama bin Laden stated: “The values of this Western civilization under the leadership of America have been destroyed. Those awesome symbolic towers that speak of
2. NAT’L COMM’N ON TERRORIST ArrAcKs UPON THE U.S., THE 9/11 COM- MISSION REPORT xvi (2004) [hereinafter 9/11 COMMISSION REPORT].
3. Id.
HOMELAND SECURITY AND CIVIL LIBERTIES
liberty, human rights, and humanity have been destroyed. They have gone up in smoke. I tell you, freedom and human rights in American are doomed.
4
A coalition of loosely-connected men and women have killed thousands of people in an attempt to destroy some of our coun- try’s greatest symbols in New York and Washington, D.C. They have murdered hundreds of commuters on their way to work in Madrid, Spain. They have struck hundreds of young people enjoying a holiday in Bali, Indonesia. They have slit the throats of noble civilians trying to improve life in Iraq. They have mas- sacred hundreds of children and teachers excitedly attending their first day of school in Beslan, Russia.
The enemy America faces is different than any this country has faced before-it is small, mobile, and able to function with- out clearly established chains of communication or logistical sup- ply lines. It knows no geographic boundaries and is able to operate on limited budgets. This enemy is every bit as dangerous as any this country has faced before, as it has clear intentions to leverage our own technology against us and to use weapons of mass destruction in our largest urban areas. Most chillingly, it has no conscience. This enemy presents us with imminent threats and is right now planning ways to kill us, our families, and our neighbors. This enemy is patient and methodical, so we cannot think that because nothing has happened recently the threat has subsided. Finally, this enemy is not reasonable. Compassion, logical arguments, and reasoned debate will not reach them. As the 9/11 Commission concluded: “It is not a position with which Americans can bargain or negotiate. With it there is no common ground-not even respect for life-on which to begin a dia- logue. It can only be destroyed or utterly isolated.”5
One of the key challenges facing those who seek to influ- ence public opinion regarding homeland security and civil liber- ties is the need to recognize this context and to understand how this new factual context changes the terms of the debate. Many of the basic issues in the war on terror are very familiar to Ameri- cans. For example, there have been heated debates about the issue of “racial profiling” for many years. There have been criti- cisms regarding the expansion of the Border Patrol for many years. There have been criticisms that the United States allows too many-or too few-immigrants for many years. All of these
4. For the text of these remarks, see MIGRATION POLICY INSTITUTE,
AMERICA’S CHALLENGE: DOMESTIC SECURITY, CMVL LIBERTIES, AND NATIONAL
UNITY AFTER SEPTEMBER 11, at 5 (2003) [hereinafter AMERICA’S CHALLENGE]. 5. 9/11 COMMISSION REPORT, supra note 2, at 362.
2005]
292 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
issues, and many others, still must be recognized and resolved. However, it is critical that America recalibrates and reassesses the issues in a post 9/11 world.
As decision makers, advocates, and opinion leaders approach the issues of homeland security and civil liberties, we have a duty to promote innovation. We are in a new century, we are in a new context, and we must look for new paradigms and fresh approaches. Justice Louis Brandeis wrote, “If we would guide by the light of reason, we must let our minds be bold.”6
Likewise, scholars at the Migration Policy Institute have stated: It is too easy to say that if we abandon our civil liberties the terrorists win. It is just as easy to say that without security there will be little room for liberty. What is hard is to take both arguments with equal seriousness and to integrate them within a single framework.7
Get Professional Assignment Help Cheaply
Are you busy and do not have time to handle your assignment? Are you scared that your paper will not make the grade? Do you have responsibilities that may hinder you from turning in your assignment on time? Are you tired and can barely handle your assignment? Are your grades inconsistent?
Whichever your reason may is, it is valid! You can get professional academic help from our service at affordable rates. We have a team of professional academic writers who can handle all your assignments.
Our essay writers are graduates with diplomas, bachelor’s, masters, Ph.D., and doctorate degrees in various subjects. The minimum requirement to be an essay writer with our essay writing service is to have a college diploma. When assigning your order, we match the paper subject with the area of specialization of the writer.
Why Choose Our Academic Writing Service?
Plagiarism free papers
Timely delivery
Any deadline
Skilled, Experienced Native English Writers
Subject-relevant academic writer
Adherence to paper instructions
Ability to tackle bulk assignments
Reasonable prices
24/7 Customer Support
Get superb grades consistently
How It Works
1. Place an order
You fill all the paper instructions in the order form. Make sure you include all the helpful materials so that our academic writers can deliver the perfect paper. It will also help to eliminate unnecessary revisions.
2. Pay for the order
Proceed to pay for the paper so that it can be assigned to one of our expert academic writers. The paper subject is matched with the writer’s area of specialization.
3. Track the progress
You communicate with the writer and know about the progress of the paper. The client can ask the writer for drafts of the paper. The client can upload extra material and include additional instructions from the lecturer. Receive a paper.
4. Download the paper
The paper is sent to your email and uploaded to your personal account. You also get a plagiarism report attached to your paper.
Get Professional Assignment Help Cheaply
Are you busy and do not have time to handle your assignment? Are you scared that your paper will not make the grade? Do you have responsibilities that may hinder you from turning in your assignment on time? Are you tired and can barely handle your assignment? Are your grades inconsistent?
Whichever your reason may is, it is valid! You can get professional academic help from our service at affordable rates. We have a team of professional academic writers who can handle all your assignments.
Our essay writers are graduates with diplomas, bachelor’s, masters, Ph.D., and doctorate degrees in various subjects. The minimum requirement to be an essay writer with our essay writing service is to have a college diploma. When assigning your order, we match the paper subject with the area of specialization of the writer.
Why Choose Our Academic Writing Service?
Plagiarism free papers
Timely delivery
Any deadline
Skilled, Experienced Native English Writers
Subject-relevant academic writer
Adherence to paper instructions
Ability to tackle bulk assignments
Reasonable prices
24/7 Customer Support
Get superb grades consistently
How It Works
1. Place an order
You fill all the paper instructions in the order form. Make sure you include all the helpful materials so that our academic writers can deliver the perfect paper. It will also help to eliminate unnecessary revisions.
2. Pay for the order
Proceed to pay for the paper so that it can be assigned to one of our expert academic writers. The paper subject is matched with the writer’s area of specialization.
3. Track the progress
You communicate with the writer and know about the progress of the paper. The client can ask the writer for drafts of the paper. The client can upload extra material and include additional instructions from the lecturer. Receive a paper.
4. Download the paper
The paper is sent to your email and uploaded to your personal account. You also get a plagiarism report attached to your paper.
PLACE THIS ORDER OR A SIMILAR ORDER WITH Essay fount TODAY AND GET AN AMAZING DISCOUNT
The post Homeland Security and Civil Liberties appeared first on Essay fount.
What Students Are Saying About Us
.......... Customer ID: 12*** | Rating: ⭐⭐⭐⭐⭐"Honestly, I was afraid to send my paper to you, but you proved you are a trustworthy service. My essay was done in less than a day, and I received a brilliant piece. I didn’t even believe it was my essay at first 🙂 Great job, thank you!"
.......... Customer ID: 11***| Rating: ⭐⭐⭐⭐⭐
"This company is the best there is. They saved me so many times, I cannot even keep count. Now I recommend it to all my friends, and none of them have complained about it. The writers here are excellent."
"Order a custom Paper on Similar Assignment at essayfount.com! No Plagiarism! Enjoy 20% Discount!"
