Santa Clara University

Lessons of liberties and rights in the post-9/11 world

Last fall, I taught a seminar entitled "Post-9/11 Challenges to Constitutional Rights and Social Justice" to 20 Santa Clara University law students. The course focused on the emerging set of civil liberties and civil rights problems in the "war on terrorism."

For the first class, I asked the students to write and read aloud a short essay answering the following questions: How did you learn about and respond to the events of Sept. 11? How have your thoughts about the meaning of Sept. 11 changed one year later? What post-9/11 constitutional and social justice issues would you like to examine in this course?

Margaret M. Russell

The students' responses were fascinating, thought provoking, honest, and personal. All described the tremendous shock and sadness that they had experienced during the attacks and their aftermath. One student had lost a family member; many others had endured the anxiety of seeking out relatives and friends in New York and Washington, D.C. in the first hours and days of the tragedy. Most significantly, in terms of the evolution of the seminar, each student expressed a deep need to comprehend the effects of Sept. 11 on the future of democratic government, civil rights, and civil liberties in the United States.

Accordingly, our seminar focused on an array of anti-terrorism issues under the broad rubrics of equal protection, due process, freedom of expression, and separation of powers. The tremendous engagement of the students and the urgency of the material made for an absorbing semester.

As the second anniversary of Sept. 11 approaches, the status of individual liberties and rights in the United States is even more precarious as new information surfaces about executive branch encroachment on constitutional guarantees. Mounting concern about and opposition to such transgressions is hardly partisan or parochial; a growing number of voices from left, right, and center express the view that democracy and liberty should not be casualties in the "war on terrorism."

Conservatives and liberals note the administration's over-reliance on "national security" rationales to justify indefinite detentions of citizens and noncitizens; monitoring of private e-mail and Internet use; inspection of private financial, library, and educational records; secret searches of homes and offices; and closure of historically-open immigration proceedings. In June, an independent investigative report by the inspector general of the U. S. Justice Department strongly criticized the FBI and the Justice Department itself for abusive practices in the investigation and detention of 762 noncitizens in the first year after Sept. 11. The report details patterns of physical and psychological mistreatment in these secret detentions, as well as widespread due process violations such as denial of access to counsel and judicial hearings. Other organizations, such as Amnesty International and the Lawyers' Committee for Human Rights, estimate that the number of detainees actually exceeded 1,200, that detainees were held for as long as 119 days without being told why, and that they had been denied access to counsel for as long as three months.

As a result of these and other revelations, there has been a resurgence of politically diverse activism in communities across the United States. Loyal and yes, patriotic Americans are beginning to reassert that love of country means a commitment to democratic freedoms as well as to national security. If these voices of reason prevail, we all will have learned the most important post-9/11 lesson of all: that commitment to enduring constitutional values should transcend the climate of fear.

Professor Margaret M. Russell has taught constitutional law and civil procedure at SCU since 1990. She writes and lectures frequently on civil liberties and civil rights issues.

"The status of individual liberties and rights in the United States is even more precarious as new information surfaces about executive branch encroachment on constitutional guarantees."

Margaret M. Russell