PROTECTING LIBERTY IN AN AGE OF TERROR.
By Philip B. Heymann and Juliette N. Kayyem.
MIT Press. 194 pp. $30

In the name of protecting security since 9/11, top government officials have redrafted the rule book on American civil liberties. Philip Heymann and Juliette Kayyem, Justice Department officials in the Clinton administration who now teach at Harvard University, take careful stock of this profound shift in law and policy. In a remarkable and timely book, they seek to balance the competing demands of security and liberty, not simply in the abstract but through precise and detailed prescriptions.

They begin by cataloging recent security practices that “have too often given insufficient weight to concerns about democratic freedoms, human rights, lawfulness, and international relations.” Due process requirements for suspected terrorists have been loosened, government secrecy has expanded, and the right to privacy has been reduced. Thousands of undocumented aliens have been rounded up and held in U.S. prisons and detention centers, without charges, for months, even years. Foreign detainees in American prisons overseas have been brutally abused and subjected to interrogation techniques verging on torture. American citizens have been arrested in the United States and, as “enemy combatants,” denied access to legal counsel, while foreigners detained abroad and given the same designation have been held indefinitely and denied the protections of the Geneva Conventions. Further, new methods of investigating terrorism have “increase[d] the risk of inhibiting free speech or association.”

Many authors have protested the curtailment of civil liberties and human rights since 9/11. Few, however, have proposed alternatives designed to safeguard liberty and security. Heymann and Kayyem, assisted by a bipartisan advisory panel of experts, venture into this uncharted territory, emerging with a map of “new rules and practices that simultaneously address national security, democratic liberties at home, legality and human rights abroad, and broader foreign policy interests.”

They do so by stressing three goals. The first is accountability: providing mechanisms for reviewing executive action. The particular type of review—administrative, congressional, or judicial—will depend on the context, but “a system of accountability must be developed if the country is to fully honor a system of divided, shared powers.” The second goal is transparency: providing sufficient information about security rules and practices so that Congress and the public can openly debate them. The third goal is assessment: establishing ways of determining whether a particular rule or practice does indeed reduce the threat of terrorism.

Using this framework, Heymann and Kayyem examine such controversial practices as coercive interrogation, indefinite detention, targeted killing, the interception of communications, and the surveillance of religious and political meetings. In each case, they offer reasoned approaches for overseeing, assessing, and limiting or banning the practice.

How well does their balancing act work? It’s difficult to evalutate recommendations before they’ve been tested over time, and implementing many of these proposals may prove politically impossible: Security specialists are loath to surrender any authority, while civil liberties advocates resist any compromise of their principles. Still, as executive branch officials, members of Congress, and judges continue to develop rules for defending our security, they can profit from Heymann and Kayyem’s guidance on the equally urgent task of protecting our liberty.

—John Shattuck