If 10 people were in a room and nine of those people were completely
innocent of any crimebut one possessed illegal drugsit
would definitely be impermissible to search all 10 people to find
the drugs. If, however, there were 10 people in a room and nine
were completely innocentbut one possessed a nuclear weaponit
would definitely be permissible to search all 10 people to find
Terrorism presents a unique challenge to the American criminal
justice system, because the severity and devastation of terrorism
make a post-event response (police responding after a terrorist
attack) essentially useless.
For most crimes, even murder, capture of the suspect provides some
level of justice and retribution to victims, their families and,
more generally, to society. With regards to terrorism, however,
it is doubtful that if Osama bin Laden were captured and punished,
we would feel that justice had been served.
The distinctive quality of terrorism emphasizes the fact that police
must prevent terrorism before it happens. As a result of terrorisms
uniqueness, Congress has given unparalleled powers to law enforcement
to fight terrorism through the passing of the USA PATRIOT Act. The
act granted law enforcement increased authority to conduct wiretaps,
detain noncitizens, monitor Internet and e-mail activity, conduct
secret searches, examine financial activity, and gain
access to personal records.
These new powers appear to permit that which previously was thought
to be unconstitutional. Additionally, courts are likely to approve
the indiscriminate use of these new police powers through a cautiously
developing area of the law that ought to be termed the terrorism
exception to the Fourth Amendment, which protects against
unreasonable search and seizure.
The terrorism exception states that societys interest in
the prevention of a terrorist attack outweighs almost any privacy
interest or privacy right of an individual American. Courts have
repeatedly stated that under certain circumstanceswhere the
potential harms are extremethe unconstitutional becomes constitutional
and the impermissible becomes permissible.
For example, in Florida v. J.L., the U.S. Supreme Court
ruled that an anonymous tip that a boy was on a street corner with
a gun was insufficient to permit the police to stop the boy and
frisk him. The Supreme Court, however, specifically left open the
possibility that a greater danger, such as a bomb, could justify
Another example of the terrorism exception can be found in the
Supreme Court case Indianapolis v. Edmond. In the Edmond
case, the court stated that if the main purpose of a roadblock is
to find drugs, then the roadblock is unconstitutional because no
suspicion of individual wrongdoing exists. In other words, although
the police did not suspect any particular individuals of having
drugs, they still stopped every car without knowing which, if any,
of the cars stopped had drugs. This made the roadblock unconstitutional.
Again, however, the court noted that the Constitution would
almost certainly permit a ... roadblock set up to thwart an imminent
After viewing Ground Zero, Supreme Court Justice Sandra Day OConnor
predicted, Were likely to experience more restrictions
on personal freedom than has ever been the case in this country.
Terrorism has created an unequaled threat to Americas commitment
to the Constitution. It pushes the Fourth Amendment to its logical
limitations. We must, however, remain committed to the liberties
and freedoms that make us a target of terrorism.
In a post-Sept. 11 article titled Security Versus Civil Liberties,
highly distinguished judge and scholar Richard Posner aptly said,
We are a nation under law, but first we are a nation,
as he justified restricting freedom to fight terrorism.
Of course we are. The preservation of America must come before
the preservation of Americas laws. The law must bend with
the times and the challenges its faces. On the other hand, it mustnt
Judge Posner also stated, [I]n hindsight we know that interning
Japanese-Americans did not shorten World War II. But was this known
at the time? If not, shouldnt the Army have erred on the side
of caution, as it did?
No. Absolutely not. The Japanese internment camps and the Supreme
Courts failure to check and balance the other governmental
branches in times of emergency represents not the mere bending of
the law, but the very breaking of it that we must avoid today.
In the post-9/11 era, courts will be forced to allow some previously
unacceptable violations to personal freedom to prevent even more
unacceptable terrorist attacks. There will be times where the needs
of law enforcement will be more important than the needs of the
individual. And, circumstances will exist when the terrorism exception
to personal liberty will be both just and necessary.
But the exception is not without its costs. It chips away at our
cherished constitutional protections. It tempts courts to approve
the unconstitutional, and it urges courts to permit the impermissible.
Courts must be cautious. They must remain firm and devout to the
Courts must not be tricked by law enforcement under the guise that
the prevention of terrorism justifies allfor what is security
without liberty? The courts, and all of us, need to remember that
we must prevent terrorism so we can preserve liberty; the
purpose of security and safety is to enjoy freedom. The terrorism
exception must not swallow the rule of protecting personal
Our new challenge and that of our courts is to find the sacred
middle ground where we can be both safe and free. We must search
for the perfect balance, a balance where personal freedoms are curtailed
no more than necessary to prevent terrorism. To borrow the words
of another great justice, William Brandeis: Those who won
our independence . . . did not exalt order [and security] at the
cost of liberty.
Security and terrorism prevention are means to an endand
that end is freedom.