The Rule of Law in Times of Stress

Abstract

A recent poll reported that support for the First Amendment has eroded significantly since the terrorist attacks of September 11, 2001.1 The Department of Justice is actively considering a program under which everyone is encouraged to become an informant to the gov2 ernment against everyone else. A Secret Service agent of Arabic descent was refused permission to board a commercial air flight, because the pilot thought that he was potentially dangerous.3 And the courts are being asked to hold secret hearings, to sanction indefinite detentions of people whose identities are not revealed, and to draw sharp distinctions between the human rights to be accorded to U.S. citizens and to "aliens," whether the latter are legally present in the country or not. Whatever may justify any or all of those attitudes, decisions, and policies, it is fair to say that they represent a departure from the norms to which Americans have become accustomed in the last fifty years. They call into question the balance between individual rights and executive decisions undertaken in the name of state security. More fun-