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July 9, 2003
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Civil Liberties After 9/11
By Robert H. Bork
Commentary | July 4, 2003

WHEN A nation faces deadly attacks on its citizens at home and abroad, it is only reasonable to expect that its leaders will take appropriate measures to increase security. And, since security inevitably means restrictions, it is likewise only reasonable to expect a public debate over the question of how much individual liberty should be sacrificed for how much individual and national safety.

That, however, is not the way our national debate has shaped up. From the public outcry over the Bush administration’s measures to combat terrorism, one might suppose that America is well on the way to becoming a police state. A full-page newspaper ad by the American Civil Liberties Union (ACLU), for instance, informs us that the Patriot Act, the administration’s major security initiative, goes “far beyond fighting terrorism” and has “allowed government agents to violate our civil liberties—tapping deep into the private lives of innocent Americans.” According to Laura W. Murphy, director of the ACLU’s Washington office, Attorney General John Ashcroft has “clearly abused his power,” “systematically erod[ing] free-speech rights, privacy rights, and due-process rights.” From the libertarian Left, Anthony Lewis in the New York Times Magazine has charged President Bush with undermining safeguards for the accused in a way that Lewis “did not believe was possible in our country,” while from the libertarian Right, William Safire has protested the administration’s effort to realize “the supersnoop’s dream” of spying on all Americans.

The charge that our civil liberties are being systematically dismantled must be taken seriously. America has, in the past, overreacted to perceived security threats; the Palmer raids after World War I and the internment of Japanese-Americans during World War II are the most notorious examples. Are we once again jeopardizing the liberties of all Americans while also inflicting particular harm on Muslims in our midst?

Civil libertarians insist that we are. They condemn the indignities of security checks at airports, the tracking of Muslim visitors to the U.S., detentions of suspects for indefinite periods without access to the courts, and, when criminal charges are brought, the government’s attempt to limit the accused’s access to important evidence. Still worse in their view is the administration’s evident intention of using military tribunals to try suspected terrorists. Finally, and most frightening of all to critics, the government has proposed the Terrorism Information Awareness (TIA) program—initially and even more ominously known as the Total Information Awareness program—which would employ computers to gather and assess vast amounts of data relating to the transactions of, among others, unknowing American citizens.

There is no denying the rhetorical force of these accusations, or the success with which they have been used by the Left as a rallying cry against President Bush. What is less clear is their validity, not just on their own terms but in relation to the radically altered domestic security situation we have faced since the attacks of 9/11. There may be a case to be made concerning the measures we have taken so far; but it is not the one presented by the critics.

Security and Ethnic Profiling

ACCORDING TO Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, American Muslims have already lost many of their civil rights. “All Muslims are now suspects,” Hooper has protested bitterly. The most salient outward sign of this is said to be the ethnic profiling that now occurs routinely in this country, particularly at airports but elsewhere as well—a form of discrimination widely considered to be self-evidently evil.

For most of us, airport security checks are the only first-hand experience we have with countermeasures to terrorism, and their intrusiveness and often seeming pointlessness have, not surprisingly, led many people to question such measures in general. But minor vexations are not the same as an assault on fundamental liberties. As for ethnic profiling, that is another matter, and a serious one. It is serious, however, not because it is rampant but because it does not exist.

That profiling is wicked per se is an idea that seems to have originated in connection with police work, when black civil-rights spokesmen began to allege that officers were relying on race as the sole criterion for suspecting someone of criminal activity. Profiling, in other words, equaled racism by definition. Yet, as Heather Mac Donald has demonstrated in Are Cops Racist?, the idea rests on a false assumption—namely, that crime rates are constant across every racial and ethnic component of our society. Thus, if blacks, who make up 11 percent of the population, are subject to 20 percent of all police stops on a particular highway, racial bias must be at fault.

But the truth is that (to stick to this particular example) blacks do speed more than whites, a fact that in itself justifies a heightened awareness of skin color as one of several criteria in police work. Of course, there is no excuse for blatant racism; but, as Mac Donald meticulously documents in case after case around the country, there is by and large no evidence that police have relied excessively on ethnic or racial profiling in conducting their normal investigations.

The stigma attached to profiling where it hardly exists has perversely carried over to an area where it should exist but does not: the war against terrorism. This war, let us remember, pre-dates 9/11. According to Mac Donald, when a commission on aviation security headed by then-Vice President Al Gore was considering a system that would take into account a passenger’s national origin and ethnicity—by far the best predictors of terrorism—both the Arab lobby and civil libertarians exploded in indignation. The commission duly capitulated—which is why the final Computer-Assisted Passenger Prescreening System (CAPPS) specified that such criteria as national origin, religion, ethnicity, and even gender were not to be taken into consideration.

This emasculated system did manage, even so, to pinpoint two of the September 11 terrorists on the day of their gruesome flight, but prevented any action beyond searching their luggage. As Mac Donald points out, had the system been allowed to utilize all relevant criteria, followed up by personal searches, the massacres might well have been averted.

Ironically, it is the very randomness of the new security checks that has generated so much skepticism about their efficacy. Old ladies, children, Catholic priests—all have been subject to searches of San Quentin-like thoroughness despite being beyond rational suspicion. According to the authorities, this randomness is itself a virtue, preventing would-be terrorists from easily predicting who or what will draw attention. But it is far more probable that frisking unlikely persons has nothing to do with security and everything to do with political correctness. Frightening as the prospect of terrorism may be, it pales, in the minds of many officials, in comparison with the prospect of being charged with racism.

Registration, Tracking, and Detention of Visitors

ETHNIC PROFILING, it is charged, is also responsible for the unjustified harassment and occasional detention of Arab and Muslim visitors to the United States. This is said to be an egregious violation not only of the rights of such persons but of America’s traditional hospitality toward foreign visitors.

An irony here is that the procedures being deplored are hardly new, although they are being imposed with greater rigor. The current system has its roots in the 1950’s in the first of a series of statutes ordering the Immigration and Naturalization Service (INS) to require aliens from countries listed as state sponsors of terrorism, as well as from countries with a history of breeding terrorists, to register and be fingerprinted, to state where they will be while in the U.S., and to notify the INS when they change address or leave the country.

Historically, however, the INS has been absurdly lax about fulfilling its mandate. When a visitor with illegal status—someone, for example, thought to have overstayed a student visa or committed a crime—is apprehended, the usual practice of immigration judges has been to release him upon the posting of a bond, unless he is designated a “person of interest.” In the latter case, he is held for deportation or criminal prosecution and given a handbook detailing his rights, which include access to an attorney. It is a matter of dispute whether the proceedings before an immigration judge can be closed, as authorities prefer, or whether they must be open; the Supreme Court has so far declined to review the practice.

The procedures are now being adhered to more strictly, and this is what has given rise to accusations of ethnic or religious profiling. But such charges are as beside the point as in the case of domestic police work, if not more so. There is indeed a correlation between detention and ethnicity or religion, but that is because most of the countries identified as state sponsors or breeders of terrorism are, in fact, populated by Muslims and Arabs.

Stricter enforcement has also led to backlogs, as the Justice Department has proved unable to deal expeditiously with the hundreds of illegal immigrants rounded up in the aftermath of September 11. A report by the department’s inspector general, released in early June, found “significant problems” with the processing of these cases. There is no question that, in an ideal world, many of them would have been handled with greater dispatch, but it is also hardly surprising that problems that have long plagued our criminal justice system should reappear in the context of the fight against terrorism. In any case, the department has already taken steps to ameliorate matters. The only way for the problems to vanish would be for the authorities to cease doing their proper job; we have tried that route, and lived to regret it.

Discovery, Detention, and Prosecutionof Suspected Terrorists

ACCORDING to civil libertarians, the constitutional safeguards that normally protect individuals suspected of criminal activity have been destroyed in the case of persons suspected of links with terrorism. This accusation reflects an ignorance both of the Constitution and of long-established limits on the criminal-justice system.

Prior to 1978, and dating back at least to World War II, attorneys general of the United States routinely authorized warrantless FBI surveillance, wire taps, and break-ins for national-security purposes. Such actions were taken pursuant to authority delegated by the President as commander-in-chief of the armed forces and as the officer principally responsible for the conduct of foreign affairs. The practice was justified because obtaining a warrant in each disparate case resulted in inconsistent standards and also posed unacceptable risks. (In one notorious instance, a judge had read aloud in his courtroom from highly classified material submitted to him by the government; even under more conscientious judges, clerks, secretaries, and others were becoming privy to secret materials.)

Attorneys general were never entirely comfortable with these warrantless searches, whose legality had never been confirmed by the Supreme Court. The solution in 1978 was the enactment of the Foreign Intelligence Surveillance Act (FISA). Henceforth, sitting district court judges would conduct secret hearings to approve or disapprove government applications for surveillance.

A further complication arose in the 1980’s, however, when, by consensus of the Department of Justice and the FISA court, it was decided that the act authorized the gathering of foreign intelligence only for its own sake (“primary purpose”), and not for the possible criminal prosecution of any foreign agent. The effect was to erect a “wall” between the gathering of intelligence and the enforcement of criminal laws. But last year, the Foreign Intelligence Surveillance Court of Review held that the act did not, in fact, preclude or limit the government’s use of that information in such prosecutions. In the opinion of the court, arresting and prosecuting terrorist agents or spies might well be the best way to inhibit their activities, as the threat of prosecution might persuade an agent to cooperate with the government, or enable the government to “turn” him.

When the wall came down, Justice Department prosecutors were able to learn what FBI intelligence officials already knew. This contributed to the arrest of Sami al-Arian, a professor at the University of South Florida, on charges that he raised funds for Palestinian Islamic Jihad and its suicide bombers. Once the evidence could be put at the disposition of prosecutors, al-Arian’s longstanding claim that he was being persecuted by the authorities as an innocent victim of anti-Muslim prejudice was shattered.

Treatment of Captured Terrorists

ACCORDING, by depriving certain captured individuals of access to lawyers, and by holding them without filing charges, the government is violating the Geneva Convention’s protections of lawful combatants or prisoners of war. This is nonsense.

Four criteria must be met to qualify a person as a lawful combatant. He must be under the command of a person responsible for his subordinates; wear a fixed distinctive emblem recognizable at a distance; carry arms openly; and conduct operations in accordance with the laws and customs of war. The men the United States has captured and detained so far do not meet these criteria.

The government’s policy is as follows: if a captured unlawful enemy combatant is believed to have further information about terrorism, he can be held without access to legal counsel and without charges being filed. Once the government is satisfied that it has all the relevant information it can obtain, the captive can be held until the end of hostilities, or be released, or be brought up on charges before a criminal court.

The government chose one of these options when it charged John Lindh, an American citizen who fought with the Taliban in Afghanistan, and Zacarias Moussaoui, who is thought to have been involved in the planning for September 11, with crimes. Lindh entered into a plea agreement under which he was sentenced to twenty years in prison. Moussaoui’s case has proved more complicated. The government proposes to use only unclassified materials in its prosecution, but Moussaoui, a French citizen of Moroccan heritage who has admitted in open court to belonging to al Qaeda and swearing allegiance to Osama bin Laden, has demanded to see classified materials and to have access to other captured terrorists for the preparation of his defense.

For obvious reasons, Moussaoui’s demands are unacceptable to the government, which does not want to divulge classified information or allow terrorists to communicate with each other. But the prosecutors’ offer of an alternative procedure was rejected by the presiding judge. If the government continues to be unsuccessful in its determination to protect classified information, it may decide to prosecute Moussaoui in special military tribunals created for trying terrorists. That would surely trigger the outrage of civil libertarians, even though it is plainly arguable that Moussaoui could and perhaps should have been prosecuted there in the first place. I will return to this issue below.

In a somewhat separate category from Lindh and Moussaoui, both of whom have been charged with actual crimes, are the cases of two American citizens who have been detained rather than brought to trial because the government believes they possess undivulged valuable information. Yaser Esam Hamdi remains confined to the Norfolk Naval Brig, and José Padilla is confined at the Consolidated Naval Brig in Charleston. Neither man has yet been charged.

Hamdi filed a petition for habeas corpus challenging the legality of his detention. Although he was captured in Afghanistan, where he was carrying an AK-47 during a time of active military hostilities, and although he was classified by the executive branch as an unlawful enemy combatant, Hamdi claimed the full protections of the Constitution as an American citizen. He argued that his detention without charge and without access to a judicial tribunal or the right to counsel was in violation of the Fifth and Fourteenth Amendments.

The Court of Appeals for the Fourth Circuit held otherwise. Although the detention of U.S. citizens is subject to judicial review, that review must be “deferential.” The Constitution explicitly confers war powers on the political branches; in going to war in Afghanistan, the President had relied both on those powers and on Congress’s authorization of “all necessary and appropriate force” against nations, organizations, or persons he determined to be involved in terrorist attacks. Hamdi, the court said, was indeed an enemy combatant subject to detention. It elaborated its rationale:

The detention of enemy combatants serves at least two vital purposes. First, detention prevents enemy combatants from rejoining the enemy and continuing to fight against America and its allies. . . . In this respect, “captivity is neither a punishment nor an act of vengeance,” but rather “a simple war measure.”

Second, detention in lieu of prosecution may relieve the burden on military commanders of litigating the circumstances of a capture halfway around the globe. . . . As the Supreme Court has recognized [in Johnson v. Eisentrager (1950)], “it would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defense at home.”

Hamdi’s petition was denied, as was his right of access to an attorney or to seeing government documents.

Padilla was arrested upon his arrival at Chicago’s O’Hare airport from Pakistan. The government indicted him, claiming he planned acts of terrorism, including the explosion of a radioactive “dirty bomb.” When, like Hamdi, he petitioned for habeas corpus, the court held similarly that “the President is authorized under the Constitution and by law to direct the military to detain enemy combatants.” Nevertheless, and over the government’s objection, the court said it would allow Padilla the assistance of counsel to litigate the facts surrounding his capture and detention. (The government is now appealing this.) At the same time, the court disallowed the presence of counsel at Padilla’s interrogations, and averred that the government need only show “some evidence” to prevail.

Anthony Lewis went ballistic. It is, he wrote, a “fundamental truth” that an individual cannot get justice against the state without the effective help of a lawyer, and this truth was “being challenged in a way that I did not believe was possible in our country.” But Lewis was completely wrong. Despite his attempt to conflate the two categories, detention is not punishment; its purpose, rather, is to prevent members of enemy forces from causing harm while hostilities are in progress. Nor is Padilla the subject of a criminal proceeding; criminal law rules do not apply when detention of an enemy is ordered by the President under his war powers. Hundreds of thousands of lawful prisoners of war have been held by the United States without the right to a lawyer, and unlawful enemy combatants are entitled to even fewer rights.

This makes perfect sense. A judicial system with rights of due process is crucial to a free society, but it is not designed for the protection of enemies engaged in armed conflict against us. Nor can we divert resources from the conduct of a war to the trial of every POW or unlawful combatant who wants to litigate. Besides, giving someone like Padilla a lawyer would frustrate the very purpose of his detention, and place American lives in danger. A lawyer’s duty, acting within the bounds of ethical behavior, is to create delay and confusion, keeping alive his client’s hopes of going free. Armed with such hopes, Padilla would be all the less likely to divulge what he knew, and plans for future terrorist attacks might thereby go undetected.

It might be argued that Padilla is not like other unlawful enemy combatants because he is a U.S. citizen taken on American soil. But the Supreme Court disposed of that distinction as long ago as 1942 in Ex parte Quirin. In that case, German would-be saboteurs had entered the U.S. illegally with the intention of attacking war industries and facilities. Upon capture, they sought habeas corpus, claiming a right to trial before a regular court rather than a military tribunal. In denying the petition, the Court deemed it irrelevant that one of the captives claimed U.S. citizenship and was on U.S. soil when apprehended.

THIS IS where there is a role for military tribunals, an institution that has played an important and honorable part in American jurisprudence throughout our history. In Quirin, the Court made clear that such tribunals rightly enjoy a separate constitutional track from grand juries and trial by jury, which “at the time of the adoption of the Constitution [were] familiar parts of the machinery for criminal trials in the civil courts.” Quite properly, however, the procedures followed by these civil institutions were, and had to be, “unknown to military tribunals[,] which are not courts in the sense of the judiciary articles” of the Constitution.

Consistent with this understanding, military tribunals have been used by several Presidents in time of war. In the Revolutionary War, before there even was a Constitution, George Washington employed them freely. So did Abraham Lincoln in the Civil War, and Franklin D. Roosevelt in World War II. Although we remember the Nuremberg trial, with its many trappings of a civilian court, the victorious Allies did not always regard such open trials as the only or preferred method of proceeding. As the legal scholar Mark Martins reminds us, “German regular army soldiers were also defendants in many of the thousands of military courts and commissions convened by the Allies after the war in different zones of occupation.”

In any event, the image of military tribunals as drumhead courts manned by stony-faced officers ready to convict regardless of the evidence is a fantasy. In reality, military courts may achieve just and equitable results more frequently than the run of civilian juries. Military judges tend to be more scrupulous in weighing evidence, in resisting emotional appeals, and in respecting the plain import of the laws. There are no Lance Itos or Johnny Cochrans in military trials. If, as the war against the terrorists drags on, we are forced to have recourse to military tribunals, there may well be clear gains for both justice and security.

There are, to be sure, costs to be paid for going the route of military courts. It was no doubt partly out of a desire to placate critics, both at home and abroad, that President Bush first announced that U.S. citizens would be tried in our regular courts, and that the decision was made to try even Moussaoui in a federal district court. In the future, moreover, some of our allies may refuse to extradite captured terrorists if it is known they are likely to land before a military tribunal.

But the critics show every sign of being implacable, and in any case the cost of staying with the civil route is likely to be higher. In a district court a defense attorney will almost inevitably demand access to classified information; continued disclosure of such information in court would inform not only Muslim terrorists but all the world’s intelligence services of the information we have and our methods of gathering it. If compromising national security is one alternative that may be forced on government by the demand for access to classified material, the other is to drop charges. Neither alternative is acceptable.

The Terrorist Information Awareness Program

AMONG MENACES to American liberty, this has been widely held to be the most sinister of all. Here is William Safire:

Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every website you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend—all these transactions and communications will go into what the Defense Department describes as “a virtual, centralized grand database.”

To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you—passport application, driver’s license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the latest hidden camera surveillance—and you have the supersnoop’s dream.

What is the reality? The Terrorist Information Awareness program (TIA) is still only in a developmental stage; we do not know whether it can even be made to work. If it can, it might turn out to be one of the most valuable weapons in America’s war with terrorists.

In brief, the program would seek to identify patterns of conduct that indicate terrorist activity. This entails separating small sets of transactions from a vast universe of similar transactions. Since terrorists use the same avenues of communication, commerce, and transportation that everybody else uses, the objective is to build a prototype of an intelligence system whose purpose would be to find terrorists’ signals in a “sea of noise.” Taking advantage of the integrative power of computer technology, the system would allow the government to develop hypotheses about possible terrorist activity, basing itself entirely on data that are already legally available.

But we may never find out whether the program’s objective can be achieved, since TIA has been effectively gutted in advance. Impressed, no doubt, by the ideological breadth of the opposition to TIA, Congress was led to adopt a vague prohibition, sponsored by Democratic Senator Ron Wyden, draining TIA of much of its value. The amendment specifies that the program’s technology may be used for military operations outside the U.S. and for “lawful foreign intelligence activities conducted wholly against non-United States persons.” By inference, TIA may therefore not be used to gather information about U.S. citizens or resident aliens—despite the clear fact that significant number of persons in these categories have ties to terrorist groups.

Writing in National Journal, Stuart Taylor, Jr. has offered a hypothetical instance of how the Wyden amendment can cripple intelligence gathering. Suppose the government learns that elements of a deadly gas have been smuggled into the U.S. on flights from Germany by unidentified al-Qaeda operatives during a particular time frame. A TIA-based query of foreign databases might generate a list of possible terrorists. The Wyden amendment, however, would prohibit a search for the names of any who might be Americans, and might even put beyond reach any mixed databases that happened to include Americans. It would similarly bar looking in U.S. databases for passengers on the relevant flights whose names are also on government databases of known or suspected terrorists. Likewise out-of-bounds would be queries directed at legally accessible commercial databases—asking, for example, about purchases of canisters suitable for the deployment of the deadly gas.

Are there techniques that could be devised to prevent TIA from becoming the playground of Safire’s hypothetical supersnoop without disabling it altogether? In domestic criminal investigations, courts require warrants for electronic surveillances. As we have seen, the Foreign Intelligence Surveillance Act also requires judicial approval of surveillances for intelligence and counterintelligence purposes. While there would be no need for a warrant-like requirement in initiating a computer search, other safeguards can be imagined for TIA. Among them, according to Taylor, might be “software designs and legal rules that would block human agents from learning the identities of people whose transactions are being ‘data-mined’ by TIA computers unless the agents can obtain judicial warrants by showing something analogous to the ‘probable cause’ that the law requires to justify a wiretap.”

Critics of TIA have made much of another circumstance—that the technology is being developed by a Defense Department agency known as the Defense Advanced Research Projects Agency (DARPA), headed by Dr. John Poindexter. A former Navy admiral, Poindexter was convicted of lying to Congress in the 1980’s in connection with the Iran-contra affair. It is hardly clear, however, what relevance this has to the development of software for TIA, and in any case, if and when the development succeeds, TIA will be operated by another agency and Poindexter will have nothing further to do with it.

Still another line of criticism zeroes in on constitutional issues that may arise under the First and Fourth Amendments. The Foreign Intelligence Surveillance Act has already dealt with the former—protecting the free-speech rights of Americans—by providing that “no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the Constitution”; a similar provision could be made to apply to TIA. As for the Fourth Amendment, which guarantees freedom from unreasonable searches and seizures, TIA is designed to acquire information not from individuals or other entities but only from other government agencies and third parties (such as credit agencies) to which the information has already been divulged or that have themselves conducted a search. As the Supreme Court held in Smith v. Maryland (1979), an individual “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” We limit or waive our rights to privacy all the time, by, for example, giving financial records to a bank, filling out a public questionnaire, or dialing a phone number.

The benefits of the TIA program are palpable, and potentially invaluable; the hazards are either hyped or imaginary. There is nothing to prevent Congress from replacing the Wyden amendment with oversight provisions, or from requiring reasonable safeguards that would preserve the program’s efficacy.

What Remains to be Done

THE FACT that opponents of the Bush administration’s efforts to protect American security have resorted to often shameless misrepresentation and outright scaremongering does not mean those efforts are invulnerable to criticism. They are indeed vulnerable—for not going far enough.

In addition to the lack of properly targeted security procedures at airports, and the failure to resist the gutting of TIA, a truly gaping deficiency in our arrangements is the openness of our northern and southern borders to illegal entrants. In the south, reportedly, as many as 1,000 illegal aliens a day enter through Arizona’s Organ Pipe National Monument park, where they have become so brazen that they have cleared their own private roads. In the north, there are plenty of easily accessible and unmanned entry points from Canada. So far, Washington has not adequately responded to calls for more park-ranger staffing and military assistance, let alone addressed the lamentable condition of our immigration procedures in general.

There is, in short, plenty of work to go around. The war we are in, like no other we have ever faced, may last for decades rather than years. The enemy blends into our population and those of other nations around the world, attacks without warning, and consists of men who are quite willing to die in order to kill us and destroy our civilization. Never before has it been possible to imagine one suicidal individual, inspired by the promise of paradise and armed with a nuclear device, able to murder tens or even hundreds of thousands of Americans in a single attack. Those facts justify what the administration has already done, and urgently require more.

Of course, to say this, or to question the arguments of critics, is to risk being accused of censorship, actual or preemptive, or even McCarthyism. Here is an article in the New York Times raising the alarm about statements by Attorney General John Ashcroft:

In the past, Mr. Ashcroft has gone so far as to question the loyalty of those who challenge the constitutionality of his tactics. In a defining moment in December 2001 at a Senate hearing, Mr. Ashcroft declared: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends.”

As it happens, “phantoms of lost liberty” is a perfectly apt description for much of the commentary that has been offered on the administration’s initiatives. It is demonstrably true, moreover, that people who recklessly exaggerate the threat to our liberties in the fight against terrorism do give ammunition, moral and otherwise, to our enemies. Asserting as much does not impugn the loyalty of such people. They are perfectly free to say what they think, and as loudly as they please. But neither should they themselves be immune from criticism, even by a government official.

ROBERT H. BORK is a senior fellow at the American Enterprise Institute and Tad and Dianne Taube distinguished visiting fellow at the Hoover Institution.

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