How do we defend an open society?
By John Shattuck, 9/23/2001
THE SAVAGE TERRORIST attacks on the World Trade Center and the Pentagon shattered our expectations of security and are now driving us to consider new security measures that would sharply reduce our freedom.
But as we begin to make decisions about how to defend our open society against terrorism, we should remind ourselves why freedom is worth defending. Indeed, the very freedom that makes us vulnerable to acts of terror is also our best weapon against terrorism because it binds us together as a people and can rally our defenders around the world.
What security measures can we adopt without destroying the character of our nation? At the heart of our freedom are four rights enshrined in the Constitution: the right to speak freely; the right to be free from discrimination because of one's race, religion or national origin; the right to privacy; and the right to due process of law.
Freedom of expression is what promotes the flow of information and ideas through an open society, fosters innovation, restrains government and provides space for the beliefs and practices of many different minorities. Freedom of expression should rarely be curtailed, but it is not unlimited. In order to balance it with other rights and public interests, freedom of expression in a public place can be subjected to reasonable limits on the time, place and manner of expression.
Some forms of expression are not protected, such as speech in direct furtherance of an act of terrorism, which can be investigated and prosecuted. Spending money is not a pure form of free expression, and the government's authority to trace and even block sources of funding for terrorist crimes could be strengthened without damaging core liberties.
The right to be free from discrimination on the basis of race, religion or national origin is what keeps our diverse immigrant society dynamic, and helps it avoid the ethnic and religious conflicts that plague the world today. As a wave of intolerance against Arab-Americans swept over the country last week, it became clear that no time is more important to hold the line against group discrimination than a time of national stress after a terrorist attack when the temptation is great to find scapegoats.
If screening systems are to be put into place to identify suspected terrorists, they must avoid the use of racial or ethnic profiling because that will only fuel the climate of discrimination and hate. Not only is our freedom at stake in the way we deal with discrimination; our security will be further threatened if we appear to respond to terrorism by putting the blame on ethnic or religious groups such as Arabs or Muslims.
The right to privacy is what protects individuals against an overbearing government and preserves their freedom to live their lives as they choose. With the benefits of electronic communication, we have come to accept the costs that some information about us will become broadly available to others and that our lives will no longer be so private.
But there is a limit to how low we can allow our expectation of privacy to go if we are to preserve our most basic freedoms. It has been suggested that one way to stop terrorism would be to require all people to carry a ''smart card'' that tracked all their movements and contained their personal histories. This is clearly beyond the limit of our privacy expectation because it would move us toward being controlled automatons, just as broad new authority to conduct electronic surveillance (when adequate authority already exists) could turn us into talking records.
Due process of law is what distinguishes our society from authoritarianism and anarchy. It is the heart of the justice system in a democracy. To be sure, there is no single formula for what constitutes due process, and the Constitution would allow some aspects of the justice system to be expedited or briefly delayed in processing terrorism cases. But the right to be released unless charged with a crime, and to a fair trial when accused, cannot be compromised without sacrificing basic freedom.
In the end, the gravest threat to our open society is not the risk of terrorism, it is the risk that we will overreact to terrorism by unnecessarily restricting our own freedom. That, after all, is what the terrorists want us to do.
John Shattuck is CEO of the John F. Kennedy Library Foundation. He is a former ássistant secretary of state for human rights.
This story ran on page D7 of the Boston Globe on 9/23/2001.