July 28, 2005
"The battles over Bush's Supreme Court nominees are about to be waged on the wrong terrain -- on the bloody fields of America's culture wars. But the Supreme Court decisions most likely to change the face of America in coming years won't be about sex or religion. They'll concern the rights of individuals against a steadily growing anti-terror security state.
The London bombings should remind us of the high likelihood -- inevitability -- of another terrorist attack here. When it occurs, Americans will be tempted to jettison some of our civil liberties in order to allow larger roles for the FBI, CIA, and the military in preventing further attacks. Recall that after 9/11 the Patriot Act sailed through Congress with barely a whimper of protest, although it dramatically expanded government's authority to snoop on Americans. And President Bush initially was given wide latitude to suspend rights and invoke "executive privilege" to shield executive action from public scrutiny.
Few occasions are more dangerous to a democracy than when a majority fears hidden enemies. Citizens are willing to sacrifice rights in the belief that, because they individually are innocent of any wrongdoing, their own personal freedoms will not be affected. Yet any loss of civil liberty subjects the innocent as well as the guilty to random intrusions on privacy and peace of mind, as well as the possibility of retaliation for speaking one's mind or voting one's conscience. Moreover, liberty's loss is rarely security's gain.<>
When the next act of terrorism occurs on American soil, the nation will need a Supreme Court that understands its vital role in protecting the Bill of Rights from an inflamed electoral majority. The culture wars are important, of course, but the ongoing war against terror will pose a greater test of our character and values. At the least, Bush nominees to the Court should pass it."
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