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RESEARCH

Can We Preserve Freedom and Still Be Secure?

A new report looks at the difficult balance

Is it possible to combat terrorism and provide security while also safeguarding freedom and personal civil liberties? Juliette Kayyem thinks it is. And the best way to do that, she writes in a new report coauthored with Harvard Law Professor Philip Heymann, is to use legislation and judicial processes intelligently “to both support and constrain executive branch authority.”

The problem is that since the terrorist attacks on 9/11, few have really tried to figure out how to fairly balance the two seemingly competing sides.

“The last three years have been a sprint. We’ve been calling it a ‘war on terror,’” says Kayyem, acting executive director of research at the Belfer Center for Science and International Affairs, “but we need to move into marathon phase.”

It’s critical, says Heymann, because terrorism isn’t going away.

“Terrorism is going to be with us for 30 or 40 years,” he says. “The country and the world have come to terms with how a variety of things will be handled. If we allow them to be treated just as incidents of war, the war will last longer than any war we’ve seen. We won’t end up a secure democracy if we allow our president all the power Roosevelt had in WWII and Lincoln had in the Civil War.”

Kayyem says this means we need to figure out how our institutions of law and governance can reassert themselves into the war on terror.

To do this, she and Heymann, with the financial support of Oklahoma City’s National Memorial Institute for the Prevention of Terrorism, pulled together a bi-partisan group of 20 U.S. and British security and legal experts. For nearly a year, the group analyzed the legal changes that the government has made in the wake of 9/11 and what they call the “unprecedented practices” that the government has adopted.

“For example, the FBI can now, without identifying itself and with no predicate, survey a religious meeting or ceremony. That doesn’t seem right. Most Americans don’t agree with this either,” Kayyem says.

Eventually the group came up with a list of what they call “10 of the thorniest issues affecting liberty and security” — issues like the surveillance of religious meetings (full list of issues) — and provided recommendations for how these issues could be fairly handled. With religious meetings, for example, they believe a government agency must get authorization to monitor the meeting and then only if certain conditions are met, such as reasonably suspecting that the group is planning violent activity.

“The idea was to present this report to Congress. It’s going to take legislation to address many of these issues,” Kayyem says. “Contrary to what people think, a lot of what we’re doing in the war on terror is not addressed in the Patriot Act. It’s not addressed anywhere. Even after the Abu Ghraib scandal, for instance, we still don’t have a system in place for what interrogations are permissible.”

What may surprise some people, Kayyem says, is that concrete guidelines like the ones in the report — things like stating that outside a combat zone there cannot be any targeted killing unless the president finds evidence that the killing is immediately necessary and provides that evidence to Congress — can actually make the job of securing the nation easier.

“Trying to balance liberty and security is difficult. But it’s important to remember that having clear guidelines actually helps, it doesn’t hinder national security,” she says. “Without it, we’re seeing that people will either cross the line and go too far, or be fearful of crossing the line and not go far enough. Again, we see this with Abu Ghraib. Now there are no interrogations taking place because everyone is afraid of what they can and cannot do.”

Although the 10 issues that the group addresses in the report look like they were designed to address the prison abuse in Iraq, Kayyem says they actually came up with them before the scandal broke.

“Of course, a lot of them got more resonance after Abu Ghraib,” she says, “but in time, I suspect that all 10 will prove highly relevant.”

The report was ready before the November election, but the group held the release date until after voters had gone to the polls.

“We felt like it didn’t matter. Either man needed to address this. No matter who won, we needed to shift gears and get moving on this.”

To read the full report, go to www.ksg.harvard.edu/bcsia/longtermlegalstrategy