Security & Civil Liberty: Sometimes You Can't Have Both?

RJLipkin at RJLipkin at
Sat Dec 17 06:12:23 PST 2005

In a message dated 12/16/2005 10:31:44 PM Central Standard Time,  
bobsheridan at writes:

I'm not  suggesting that Prof. Yoo forgot law, simply that he preferred to 
invoke war  powers law as he understood and justified it as outweighing Fourth 
Amendment  law as used in the criminal courts perhaps, in peacetime.  This is 
not  the same as advocating for the divine right of  kings.

Well, maybe not.  But  hasn't history shown us that such a view is 
pernicious?  How many people  would be happy with  a leader who believes this: ""I don't 
agree with the  libertarians," said Sen. Trent Lott (R-Miss.). "I want my 
security first. I'll  deal with all the details after that"? Civil liberties as 
"details"?  Is it  even remotely plausible to contend that during the Cold War 
we could have both  security and civil liberties, but after 9/11 we cannot? 
(Assuming of course that  the surveillance done during the Cold War was lawful). 
        We're all afraid of  terrorist acts especially carried out within the 
United States, but does that  mean we should formally embrace the attitude 
that when the President thinks it  appropriate, civil liberties can go to Hell? 
What has become of our  democratic culture? Whatever happened to the cherished 
conviction  that civil liberties are most important when the practical need 
to curtail  them is most acute?
        Jus what are the legitimate  problems arising from the attempt to 
both achieve security and civil  liberties at the same time? Just what is so 
difficult about enforcing the Fourth  Amendment in these times anyway? (These last 
questions are genuine  questions.)

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
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