Column: Culture of terror threatens freedom

Published 12:00 am Tuesday, September 23, 2003

My understanding of the main ideas and safeguards undergirding the American criminal justice system goes back, literally, to what I learned in elementary school. I recall learning that it was better for ten guilty people to go free than for one innocent person to be imprisoned. I learned that such constitutional shields were essential since citizens (whom I remember as invariably portrayed in textbooks as noble and innocent) needed protection from government (which was implicitly conceived as always on the cusp of tyrannical). Thinking back, my early education in New York City public schools benefited from a remarkable civil libertarian strain.

Then again, federal buildings and world trade centers had yet to be blown up in the 1950s and ’60s. And men, women, and children could still live, work, and play in solid confidence that the comparatively angelic young hoods and gang members of the time (like those in West Side Story) would not keep them from living, unmaimed, to see another day.

Under such sweeter circumstances, talk of &uot;ten guilty men going free rather than one innocent man going to prison&uot; was a civically satisfying abstraction. It spoke of American freedom and uniqueness. As a child, I do not recall fearing that such a safeguard threatened my well-being or that of my family, if for no other reason than there was no reason to fear everyday barbarism.

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But what comes of such views and protections when barbarism of one kind or another is an everyday American event? What price in liberty will we increasingly pay for doing what we unquestionably need to do in order to protect ourselves?

One can only guess about the exact shape of that toll. But it’s sadly clear that the kind of police-power restrictions stipulated by the Founders and consistently enlarged by courts ever since are viable over the long haul if, and only if, civilization reigns. In other words, if no sanity prevails in office buildings and in the streets, then constitutional and other buffers cannot survive as we have come to know them over two centuries-plus.

This, I assure you, is not a fevered pitch for ripping the soul out of the Bill of Rights and other examples of American civility and exceptionalism. Quite the opposite. It’s regrettable recognition that American civil liberties will be ceaselessly threatened, inescapably so, as long as Americans themselves are violently threatened, whether by alien or native thugs.

Truth be told, I wrote the above neither recently nor even after the World Trade Center, and nearly 3,000 people, were erased from the New York City sky on Sept. 11, 2001. I wrote it immediately after the bombing of the federal building in Oklahoma City a half-dozen years earlier, in 1995, which followed the first terrorist attack on the World Trade Center in 1993. What have we learned since those days?

To start, we’ve learned that we’re really at war. Not an optional, sidebar, or rhetorical war, but a real one, the kind in which our enemies really do want to kill us. Lots of us.

We’ve learned that, while zealots on behalf of a poisonous brand of Islam are not the only people determined to destroy what America champions (witness Oklahoma City), no one else around the world is nearly as eager to detonate themselves in the process.

And despite the touch of melodrama in what I contended in the wake of the Oklahoma City bombing, I would acknowledge, with relief, that civil liberties have not taken nearly the hit I predicted they might. Why not?

One thankful reason is that, while terrorists of one sort or another seem to strike every other day somewhere in the world, large scale attacks on U.S. soil have been rare, perhaps remarkably so. At least as I write, this is so.

Related is the fact that it takes only a few months of relative peace for most people and institutions to revert to some measure of complacency. Or more accurately, I assume it’s psychologically impossible to remain in a state of acute alertness for long stretches, meaning that energy and efforts generally will remain sporadic and weak when it comes to radically tightening law enforcement screws. (The Constitution itself, backed by an army of defenders, is also an inoculating roadblock, of course.)

But I would also claim that never has a nation, in waging a pivotal war, worked so hard not to offend anyone. This thoroughly American determination to be multiculturally and utterly fair says many good things about us. But it can also be taken to ridiculous and dangerous extremes, as in a frequent and unquestioning opposition to any precaution that even hints at, or can be misrepresented as, racial or religious &uot;profiling.&uot;

Despite what absolutist civil libertarians and others have claimed, government officials haven’t even begun to pinch constitutional safeguards, never mind shredding them. If anything, we have erred on the side of doing too little to protect ourselves. I’m with Judge Robert Bork, who recently wrote: &uot;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 with us.&uot; Or, as a Minnesota friend has said, &uot;While a political state has an obligation to do justice … it also has a fundamental obligation to secure the security of its citizens.&uot;

Getting even closer to the heart, my friend (a distinguished lawyer) argued a few months ago before an international audience in Europe: &uot;Our Federalist Papers remind us of the objective to create a government that would be a palladium of free government’ and a citadel of ordered liberty. These objectives are impossible to realize in a culture of terror.&uot;

In a new world in which bravery is only one virtue in need of new spine, Americans have plenty of things to fear &045; not that a state of run-amok police is currently one of them. Yet all bets, unavoidably and lamentably, will be off if the terror that engulfed us on 9/11 inflames us again. And then again.

(Mitchell B. Pearlstein is President of Center of the American Experiment, a conservative think tank in Minneapolis.)