Chicago: Campus of the Big Ideas
>> The 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.

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10	Can we protect civil liberties in wartime?

John 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 Party.

Such 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.

"As 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."

After 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.

Asked 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."

Things 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.

Much 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.

Military 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."

In 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.

The 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.

Another 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."

Most 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 was safe.
-R.M.

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1. In the beginning: what do our origins tell us about ourselves?

2. Homo sapiens: are we really rational creatures?

3. Integrating the physical and biological sciences: what lies ahead?

4. Money, services, or laws: how do we improve lives?

5. Clones, genes, and stem cells: can we find the path to the greatest good?

6. How will technology change the way we work and live?

7. Why do we dig up the past?

8. Art for art's sake?

9. In the realm of the senses: how do we understand what we see, hear, feel, smell, and taste?

10. Can we protect civil liberties in wartime?

CHICAGO INITIATIVE GOALS

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