The advance of freedom is the calling of our time; it is the calling of our country. From the Fourteen Points to the Four Freedoms, to the Speech at Westminster, America has put our power at the service of principle. We believe that liberty is the design of nature; we believe that liberty is the direction of history. We believe that human fulfillment and excellence come in the responsible exercise of liberty. And we believe that freedom-the freedom we prize-is not for us alone, it is the right and the capacity of all mankind.42
40. 9/11 COMMISSION REPORT, supra note 2, at 376. 41. Office for Civil Rights and Civil Liberties, U.S. Dep’t of Homeland
Security, Mission Statement, available at http://emd.wa.gov/site-general/wah- sas/dhs-ocrcl.pdf (last visited Mar. 1, 2005) (on file with the Notre Dame Jour- nal of Law, Ethics & Public Policy).
42. President George W. Bush, Remarks by the President at the 20th Anniversary of the National Endowment for Democracy (Nov. 6, 2003), at http://www.whitehouse.gov/news/releases/200
3 / 11/20031106-3.html (on file with the Notre Dame Journal of Law, Ethics & Public Policy).
20051
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The President’s commitment to these principles was evident from the very earliest days of the war on terror. For example, just weeks after the attacks the President gave this charge to a confer- ence of federal prosecutors: “We have a huge responsibility, and that [is] to defend America while protecting our great liber- ties.”4” In August of 2004, President Bush issued Executive Order 13353, which established the President’s Board on Safeguarding Americans’ Civil Liberties.44 The Executive Order begins with a broad statement of policy: “The Unites States Government has a solemn obligation, and shall continue fully, to protect the legal rights of all Americans, including freedoms, civil liberties, and information privacy guaranteed by Federal law, in the effective performance of national security and homeland security functions.”4 5
The President then established a Board to oversee the exec- utive branch’s work, with the mission of ensuring that civil liber- ties are protected and indeed enhanced. The Board is made up of some the most senior level officials in the government, includ- ing representatives from the Justice Department (the Deputy Attorney General and two assistant attorneys general), the Department of Homeland Security (the Under Secretary for Bor- der and Transportation Security, and four other officials), the Department of the Treasury (two senior officials), the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency, and many others. The Board repre- sents the President’s determination that these issues be part of the policy-making considerations at the most senior levels of government.
In July 2002, President Bush issued The National Strategy for Homeland Security, a blueprint for the homeland security effort. One of the pillars of the National Strategy was a commitment to the protection of civil liberties:
We are a Nation built on the rule of law, and we will utilize our laws to win the war on terrorism while always protect- ing our civil liberties … Where we find our existing laws to be inadequate in light of the terrorist threat, we should craft new laws carefully, never losing sight of our strategic purpose for waging this war-to provide security and lib- erty to our people. We should guard scrupulously against
43. President George W. Bush, Remarks by the President to U.S. Attor- neys Conference (Nov. 29, 2001), at http://www.whitehouse.gov/news/ releases/2001/11/20011129-12.html (on file with the Notre Dame journal of Law, Ethics & Public Policy).
44. Exec. Order No. 13353, 69 Fed. Reg. 53,585 (Sept. 1, 2004). 45. Id. § 1.
HOMELAND SECURITY AND CIVIL LIBERTIES
incursion on our freedoms, recognizing that liberty cannot exist in the absence of governmental restraint. As we move forward in the fight, we should refrain from instituting unnecessary laws, as we remain true to our principles of federalism and individual freedom.
4 6
When the new Department of Homeland Security was cre- ated, this commitment continued. Secretary Ridge pledged that, “[0] ur strategy and our actions [will be] consistent with the indi- vidual rights and civil liberties protected by the Constitution.”4 7
Consistent with this pledge, the protection of civil liberties has been embedded into the Department’s strategic plan. The “vision statement” is clear: “Preserving our freedoms, protecting America …. We secure our homeland.”48 The “guiding princi- ples” in the strategic plan ask Department employees to make decisions with certain fundamental themes in mind-working hard to integrate with all of the new agencies that are now com- bined, to innovate through a willingness to meet all challenges, and to be accountable to measurable goals that will reward excel- lence and solve chronic problem areas.4 9 However, the very first “guiding principle” is to “protect civil rights and civil liberties.”50 Department employees are instructed to act along these lines:
We will defend America while protecting the freedoms that define America. Our strategies and our actions will be con- sistent with the individual rights and liberties enshrined by our Constitution and the Rule of Law. While we seek to improve the way we collect and share information about terrorists, we will nevertheless be vigilant in respecting the confidentiality and protecting the privacy of our citizens. We are committed to securing our nation while protecting civil rights and civil liberties.
51
46. OFFICE OF HOMELAND SECURITY, THE NATIONAL STRATEGY FOR HOME- LAND SECURITY 48 (2002), at http://www.whitehouse.gov/homeland/book/ nat-strat hls.pdf (on file with The Notre Dame Journal of Law, Ethics & Public Policy).
47. Secretary of Homeland Security Tom Ridge, Remarks by Secretary Ridge to the Association of American Universities (Apr. 14, 2003), at http:// www.dhs.gov/dhspublic/display?theme=44&content=558&print=true (on file with the Notre Dame Journal of Law, Ethics & Public Policy).
48. U.S. DEP’T OF HOMELAND SECURITY, SECURING OUR HOMELAND: U.S. DEPARTMENT OF HOMELAND SECURITY STRATEGIC PIAN 4 (2004).
49. Id. at 6.
50. Id. 51. Id. at 7.
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Respect for civil liberties is also integrated into the “core val- ues” and throughout the “goals and objectives.”52 The leader- ship of the Department of Homeland Security has been clear that the effort to secure our nation must include an awareness of the need to protect the rights of the individual, that all strategies and actions undertaken by the Department will be undertaken with civil liberties in mind, and that the Department will seek to enhance our nation’s security while guaranteeing citizens’ per- sonal liberties.
Congress strongly reaffirmed our country’s commitment to preserving civil liberties during the war on terror as the 108th Congress concluded its work in 2004. In the omnibus appropria- tions bill, Congress required that every federal agency must have a chief privacy officer.5″ In the Intelligence Reform and Terror- ism Prevention Act of 2004, Congress created a Privacy and Civil Liberties Oversight Board. 4 The purpose of the Board is to develop “an enhanced systems of checks and balances to protect the precious liberties that are vital to our way of life.”5 The Board will have five members with the responsibility of providing oversight of the executive branch’s activities as it prosecutes the war on terror. The Intelligence Reform bill also contained lan- guage strengthening the Office for Civil Rights and Civil Liber- ties, the Office of the Chief Privacy Officer, and the Office of the Inspector General at the Department of Homeland Security.5 6
These actions of Congress demonstrate again that leaders throughout our government recognize that we need to increase both security and liberty at the same time.
Searching for ways to enhance security and civil liberties at the same time is a difficult challenge. It takes serious work to preserve something as important as our civil liberties. Thomas Jefferson wrote to a friend that people living in America could
52. The core values, standards of behavior that will be expected of Department employees, include integrity, vigilance, and respect, which are defined by the following statement: “We will value highly the relationships we build with our customers, partners and stakeholders. We will honor concepts such as liberty and democracy, for which America stands.” Id. at 5. The “goals and objectives” include these comments in a number of ways, including goal 3: “Protection: Safeguard Our People and Their Freedoms, critical infrastructure, property and the economy of our nation from acts of terrorism, natural disas- ters, or other emergencies.” Id. at 9, 20.
53. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 522, 118 Stat. 2809 (2004).
54. Intelligence Reform and Terrorism Prevention Act of,2004, Pub. L. No. 108-458, § 1061, 118 Stat. 3638.
55. Id. § 1061 (a) (2). 56. Id. §§ 8301-8305.
HOMELAND SECURITY AND CIVIL lIBERTIES
not expect “to be translated from despotism to liberty in a feath- erbed.”5 7 The serious work necessary to reinvigorate America’s commitment to the Constitution can be done in at least three arenas.
First, contributions can be made by the business community. Companies that do business in the homeland security field should consider issuing a strategic plan that parallels the Depart- ment’s commitment to these issues. Protecting the Constitution and our way of life is not just the job of government officials in Washington; corporate America can play a vital role by embed- ding these concepts into the culture of their companies.
Second, our educational system can play a role by redou- bling efforts to teach an understanding of and respect for the basic principles of the entire Constitution-both the structural provisions and the Bill of Rights. Students across America should learn again the importance of the separation of powers between the three branches of the federal government and to respect the different and independent roles of the federal, state, and local governments because they are especially powerful bulwarks of freedom. Students need to learn again the critical role that the freedom of the press plays in a democracy. They need to become fluent with the text of the Fourth Amendment to the U.S. Consti- tution and how it incorporates timeless notions of privacy. Our fundamental rights of privacy are increasingly under challenge, and Americans should carefully study the intersection of technol- ogy and privacy in this new century. Lastly, students need to be challenged to revere the freedom of religion and assembly and to understand why the Framers specifically established those protections.
Finally, opinion leaders in academia and Washington, D.C., should commit themselves to re-reading and encouraging the study of the basic texts of our nation’s Founding. Those who are making decisions that guide America through the war on terror should be fluent in the Constitution, the Bill of Rights, promi- nent Supreme Court decisions, and the federal civil rights and privacy laws that are the cornerstone of our democracy.
CONCLUSION
The war on terror presents many challenges, and Americans face unsettling and dangerous years. However, if we fight the war on terror in the right way, America will emerge more secure. Our skyscrapers, airports, and utility plants will be better pro-
57. Letter from Thomas Jefferson to Lafayette (April 2, 1790), in FAMIL- IAR QUOTATIONS, supra note 39, at 388.
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tected. Our national dialogue will be more constructive and respectful. Most importantly, we will emerge from this war as a nation that better appreciates liberty and democracy and that truly embodies the vision of its Founders.
Notre Dame Journal of Law, Ethics & Public PolicyFebruary 2014
Homeland Security and Civil Liberties: Preserving America’s Way of LifeDaniel W. SutherlandRecommended Citation
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