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June 24, 2002

The 'terrorism exception'

Jeffrey Davis, a 2002 graduate of the School of Law, will begin working this fall in the Manhattan (N.Y.) district attorney's office.

If 10 people were in a room and nine of those people were completely innocent of any crime—but one possessed illegal drugs—it 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 innocent—but one possessed a nuclear weapon—it would definitely be permissible to search all 10 people to find the bomb.

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 terrorism’s 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 society’s 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 circumstances—where the potential harms are extreme—the 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 a stop-and-frisk.

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 terrorist attack.”

After viewing Ground Zero, Supreme Court Justice Sandra Day O’Connor predicted, “We’re likely to experience more restrictions on personal freedom than has ever been the case in this country.”

Terrorism has created an unequaled threat to America’s 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 America’s laws. The law must bend with the times and the challenges its faces. On the other hand, it mustn’t break.

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, shouldn’t the Army have erred on the side of caution, as it did?”

No. Absolutely not. The Japanese internment camps and the Supreme Court’s 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 Constitution.

Courts must not be tricked by law enforcement under the guise that the prevention of terrorism justifies all—for 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 freedoms.

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 end—and that end is freedom.