Civil liberties in the era of mass terrorism

Journal of Ethics

Volumn 8, Issue 1, 2004, Pages 77-95

  Hardin, Russell ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

Civil liberties; Distrust; Habeas corpus; Stereotyping; Terrorism

Indexed keywords

EID: 64949086363     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1023/B:JOET.0000012253.54321.05     Document Type: Conference Paper

References (50)

1. Wilhelm von Humboldt, The Limits of State Action, ed. J.W. Burrow (Cambridge: Cambridge University Press [1854] 1969), p. 39.
2. Alexander Hamilton, John Jay, and James Madison, The Federalist, No. 51 (The Gideon Edition), eds. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), p. 269.
3. von Humboldt, The Limits of State Action, p. 39.
4. von Humboldt, The Limits of State Action, p. 35.
5. von Humboldt, The Limits of State Action, p. 38.
6. Schenckw. United States; Baerw. United States. 249 U.S. 47: 39 S. Ct. 247, 248; 63 L.Ed. 470; 1919 U.S.
7. I address a related issue of how our moral theories are to deal with stochastic processes in Russell Hardin, "Ethics and Stochastic Processes," Social Philosophy & Policy 7 (1989), pp. 69-80.
8. Russell Hardin, Morality within the Limits of Reason (Chicago: University of Chicago Press, 1988), pp. 68-70.
9. Rodger Doyle, "The American Terrorist," Scientific American (June, 2001), p. 28.
10. The U.S. Federal Bureau of Investigation has reputedly floated the estimate of 5000 Al Qaeda operatives in the U.S. [Noam Scheiber, "Is There Really an Army of Terrorists in Our Midst?" New York Times Magazine (16 February 2003), p. 10]. This seems implausible. That number might seem to justify substantial intrusions into civil liberties.
11. Albert B. Southwick, "Racial Profiling in Wartime Often a Two-Edged Sword," Worcester Telegram and Gazette (8 September 2002), Section C, p. 3.
12. Larry C. Johnson, "The Declining Terrorist Threat," New York Times (10 July 2001), op. ed. page.
13. Two months before September of 2001, a former U.S. State Department counterterrorism specialist argued that the threat of terrorism was declining [Larry C. Johnson, "The Declining Terrorist Threat," New York Times (10 July 2001), op. ed. page].
14. With the FBI estimate of 5000 Al Qaeda terrorists, only 20 Arab-Americans would have to be hassled for each potential terrorist captured.
15. Any reader of Chief U.S. Supreme Court Justice Rehnquist's book on civil liberties in times of crisis must be especially worried. That was originally a book of legal history, but now it reads as a troubling account of how to deal with current events. Rehnquist holds that presidents are virtually free agents in war time, and one suspects he thinks they should be. He supports former U.S. president Lincoln's formulation that preserving habeas corpus in his time would have meant allowing "all the laws but one to go unexecuted, and the government itself go to pieces, lest that one [habeas corpus] be violated" [William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Knopf, 1998), p. 38].
16. Even the conservative Economist (15 June 2002), p. 25, which has been very supportive of current U.S. president Bush and his war on terrorism, characterizes the Bush policy as "if in doubt, jail him."
17. Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002).
18. von Humboldt, The Limits of State Action, p. 17.
19. von Humboldt, The Limits of State Action, Chapter 3.
20. von Humboldt, The Limits of State Action, p. 18.
21. von Humboldt, The Limits of State Action, p. 20.
22. von Humboldt, The Limits of State Action, p. 27.
23. von Humboldt, The Limits of State Action, pp. 28-29.
24. von Humboldt, The Limits of State Action, p. 31.
25. von Humboldt, The Limits of State Action, Chapter 3.
26. von Humboldt, The Limits of State Action, p. 33.
27. von Humboldt, The Limits of State Action, p. 117.
28. von Humboldt, The Limits of State Action, p. 118.
29. von Humboldt, The Limits of State Action, p. 91.
30. Humboldt wants as little law as possible on the side of prevention because he wants to protect the virtue of free will (as in Kant) or the personal development of character (von Humboldt, The Limits of State Action, pp. 120-121).
31. "That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is selfprotection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others" [John Stuart Mill, On Liberty (Indianapolis: Hackett Publishing Company, 1978), Chapter 1, P. 9].
32. Mill, On Liberty, p. 74.
33. Mill, On Liberty, p. 64.
34. Schenck v. United States; Baer v. United States.
35. Dershowitz, Why Terrorism Works, p. 142.
36. William Blackstone speaks of absolute rights but then relativizes them with the claim that they can be limited by law. For example, he says, "The laws of England have never abridged [the right of personal liberty] without sufficient cause," His category is therefore vacuous [William Blackstone, Commentaries on the Laws of England, 4 volumes (Chicago: University of Chicago Press [1765-1769] 2002), Book 1, Chapter 1, p. 29, emphasis added].
37. As senator, Ashcroft wrote: "The government's police-state policy on encryption is creating hindrances and hurdles that will eventually injure our ability to compete internationally" [John Ashcroft, "Keep Big Brother's Hands Off the Internet," USIA Electronic Journal 2 (October, 1997), final paragraph.
38. See David Corn, "The Fundamental John Ashcroft," Mother Jones (March/April, 2002)].
39. von Humboldt, The Limits of State Action, p. 106.
40. Russell Hardin, "Liberal Distrust," European Review 10 (2002), pp. 73-89.
41. See further, Russell Hardin, Liberalism, Constitutionalism, and Democracy (Oxford: Oxford University Press, 1999), Chapter 3.
42. Alexander Hamilton, John Jay, and James Madison, The Federalist, No. 10 (The Gideon Edition), eds. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), pp. 42-19.
43. Charles de Secondat, baron de Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press, 1989), Book 11, Chapter 6, p. 157.
44. Alexander Hamilton, John Jay, and James Madison, The Federalist, No. 47 (The Gideon Edition), eds. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), pp. 249-255.
45. Adam Liptak, "Under Ashcroft, Judicial Power Flows Back to Washington," New York Times (16 February 2003), Section 4, p. 5.
46. von Humboldt, The Limits of State Action, p. 34.
47. Hardin, Morality Within the Limits of Reason, pp. 178-191.
48. New York Times, 14 September 2001, p. A18.
49. See contributions to Susan J. Pharr and Robert D. Putnam (eds.), Disaffected Democracies: What's Troubling the Trilateral Democracies (Princeton: Princeton University Press, 2000).
50. The trade-off and incursions against civil liberties were already worrisome before September of 2001. Laura Donahue says: "Special courts, secret evidence, classified deportation proceedings, and special rules of evidence speak not of an open, liberal, democratic society, but of one cloaked in secrecy. Proposals to erode posse comitatus, alter assassination policies, use criminal informants, introduce military courts, indefinite detention, and identity cards, and widen powers of information gathering proliferate" [Laura K. Donohue, "In the Name of National Security: U.S. Counter-terrorist Measures, 1960-2000," Terrorism and Political Violence 13 (2001), p. 48].