Striking a Better Balance Between

Striking a Better Balance Between Safety and Civil Liberties

American Constitutional Values and Civil Liberties

The United States has been dealing with the continual threat of terrorism inspired by radical factions of Islamic extremists since the turn of the century. In many respects, the U.S. counterterrorism efforts have been undermined and thwarted by some of the most fundamental of American civil rights and social values. Admittedly, the manner in which the previous presidential administration of George W. Bush attempted to circumvent the principles, policies, and procedures designed specifically to protect against governmental excesses was clearly illegal and unconstitutional, according to most analysts.

However, in other ways, overly restrictive interpretation and application of those same fundamental principles are now handicapping both strategic and tactical approaches to combating terrorism effectively. In principle, it is not necessary to violate constitutional concepts and protections to implement more effective counterterrorism and national security measures. On the other hand, doing so requires abandoning certain beliefs about the appropriateness of various distinctions.

Central to the issue are the constitutional principles of equal protection under the 14th Amendment, the right against unwarranted searches and seizures under the 4th Amendment, and the right against self-incrimination under the 5th Amendment. While nobody rational would ever suggest that any of those fundamental rights be summarily suspended or denied to any person, many reasonable analysts and observers would argue that various aspects of the rights protected by those constitutional provisions should be adjusted to accommodate the contemporary threat of terrorism against the U.S. domestically and U.S. citizens and interests abroad.

The Appropriate Response to the Contemporary Threat of Anti-Western Terrorism

With respect to the 4th Amendment right against unwarranted search and seizure and the 14th Amendment right to equal protection of law, both of those concepts are sufficiently adaptable to immediate circumstances to justify law enforcement and police investigation into specific persons based on reasonable suspicion, probable cause, officer safety, and general exigency of circumstances. For example, ordinarily, a citizen may not be stopped and questioned by police merely because of the fact that he is Caucasian, bald, and in the immediate vicinity of a predominantly African-American church primarily because of 14th and 4th Amendment protections. However, in light of previous incidents of white supremacist-inspired arson against black churches establishing a credible threat, the same individual may be justifiably detained temporarily for police investigation. The current situation in airport screening justifies law enforcement profiling for the purpose of identifying subjects for secondary screening in the same way, and without violating constitutional rights any more than in other tactical situations where credible circumstances justify specific investigatory interest in a particular subject.