Campus of the Big Ideas
launch of The Chicago Initiative-the University's five-year, $2
billion fund-raising effort-was marked by an April 12 event that
focused on Chicago's intellectual initiatives.
we protect civil liberties in wartime?
Adams locked up political rivals under the 1798 Alien and Sedition
Act. Lincoln suspended habeas corpus during the Civil War. Thousands
of dissenters went to jail during World War I. Some 110,000 Japanese
Americans spent World War II in internment camps, and the Cold
War spawned McCarthyism, loyalty oaths, and the ban of the Communist
measures are worth recalling during the current War on Terrorism,
said Geoffrey Stone, the Harry Kalven Jr. distinguished service
professor in the Law School, who brought six colleagues to Breasted
Hall for a conversation about the post-September 11 tension between
freedom and security. His outlook was uneasy.
Justice Brandeis observed, fear breeds repression," warned
Stone."[A]n often exaggerated sense of the danger that we
face" can lead to the "temptation to too quickly sacrifice
civil liberties-in particular the civil liberties of others."
that sober introduction, the discussion took on the lively give-and-take
of a classroom, with Stone quizzing the gathered experts in international
law, foreign policy, human-rights law, Constitutional law, and
the First Amendment like a coach rapping grounders to his infielders.
if the government might try to stifle dissent, Law School professor
Adrian Vermeule responded, "Look at what's happened since
September 11." President Bush sprang to the defense of Arab
Americans; Congress exercised "responsible oversight"
by forcing the Administration to place narrow restrictions on
the use of military tribunals. The government increased national
security but also protected civil liberties. "There's every
reason to be optimistic," Vermeule said, "about how
the political process has accommodated these questions."
could get worse, cautioned David Strauss, the Harry N. Wyatt professor
in the Law School and a First Amendment expert. "If we began
to feel we were more or less continuously under threat of being
attacked on our own soil by terrorists," he said, "the
sense that we all have to be united and that anyone who is not
completely behind what the government is doing is aiding the enemy"
could lead to "repressive" legislation. Jill Hasday,
an assistant professor at the Law School, worried less about laws
than about the "chilling effect" of public opinion.
of the talk centered on the military tribunals ordered to try
those accused of complicity in the attacks. Why military courts?
Law School professor Jack Goldsmith noted that the civilian legal
system allows a certain "slack" that military courts
do not. "We let defendants go free even though they're guilty,
in order to protect the innocent." In wartime, the cost of
letting the guilty go free is higher.
tribunals will also allow prosecutors to submit evidence that
the defendant may not see (although his appointed military lawyer
may). The panelists seemed to agree that at least some secret
evidence is okay. "I wouldn't get all religious myself about
that," said Cass Sunstein, the Karl N. Llewellyn distinguished
service professor of jurisprudence in the Law School. The important
Constitutional issue, he said, is whether the defendant receives
overall a "full and fair" trial, with a vigorous defense
and an independent tribunal. With that standard, secret evidence
alone probably is not enough to secure a conviction: "The
prosecution, if they're going to be doing their job, had better
come up with more."
sensitive cases where some evidence against a defendant might
be secret, said Law School professor Mary Anne Case, U.S. judges
might take their European counterparts as an example. In Europe,
she noted, a judge doesn't simply render a verdict but is also
an investigator, taking a more active role in uncovering the truth.
audience was eager, even feisty, and raised pointed questions.
One woman asked about a civilian-court trial involving Global
Relief Foundation, a Chicago-based charity accused of ties to
terrorism. Was secret evidence okay in that trial too? "I
would be surprised if that is upheld," Goldsmith responded.
questioner pressed the panelists about limits on reporting. Since
Vietnam, journalists have increasingly been barred from battlefields,
limiting access to first-hand information. Sunstein said such
restrictions might be bad for democracy, but they do not violate
the Constitution. "It's pretty clear that the deal is, essentially,
with only a slight exaggeration, that the press has no First Amendment
right to get its hands on information," he said. If the press
does get information, "it has a First Amendment right to
publish it. Period."
of the panelists seemed less troubled than their audience by visions
of civil liberties trampled, satisfied that the government, with
its checks and balances, had so far met the demands of national
security without fraying the Constitution. For the moment, freedom
the beginning: what do our origins tell us about ourselves?
Homo sapiens: are
we really rational creatures?
physical and biological sciences: what lies ahead?
services, or laws: how do we improve lives?
Clones, genes, and
stem cells: can we find the path to the greatest good?
How will technology change
the way we work and live?
Why do we dig up
Art for art's sake?
In the realm of
the senses: how do we understand what we see, hear, feel, smell,
Can we protect
civil liberties in wartime?