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"Using Our Fears to Justify a Power Grab"--A Commentary by Prof. Jack Balkin


(This essay first appeared in the November 29, 2001, edition of the "Los Angeles Times.")

Using Our Fears to Justify a Power Grab

By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment

Moments of crisis do not merely create emergencies. They also create temptations.

Many see the central issue before us as how to balance civil liberties and national interests. This is wrong. The danger we face today is not that government officials will make hasty decisions out of fear or that they will strike the wrong balance between liberty and security. It is that they will use a national crisis as an opportunity to make themselves more powerful and less accountable for what they do--not because they are corrupt and venal but because they are so utterly convinced of their uprightness.

In times of fear, authoritarian impulses are less constrained and people feel less able to complain about them. After all, no one wants to be thought unpatriotic when the country is in such grave danger. And when there is no check on government officials certain of their own rectitude, the temptation for them to act unilaterally and arbitrarily becomes irresistible. Such is the problem we face today, with a president and an attorney general who have dedicated themselves to stamping out all evildoers both outside the country and within it.

An increasingly authoritarian tone is pervading the Bush administration. We have seen it in the so-called USA Patriot legislation hastily pushed through Congress. We have seen it in the presidential order authorizing military tribunals without traditional due process protections and without a right of appeal to anyone but the president himself. We have seen it in new federal policies that permit eavesdropping of confidential communications between attorneys and their clients. And we have seen it in new regulations that allow the attorney general to imprison noncitizens indefinitely, even if an immigration judge has ruled that there is no evidence to justify holding them against their will.

Little by little, the basic elements of procedural fairness that keep democratic governments from acting arbitrarily are being chipped away. No apology is offered for these actions. Those who seize power always feel perfectly entitled to it. Instead, they blame their critics for failing to recognize the seriousness of the situation or for being soft on terrorism, as in the past other critics were blamed for being soft on communism.

The authoritarian impulse is justified, as it always is, through paranoia. The more fearful Americans are, the more they are willing to give their officials a free hand. It is no accident that the same attorney general who has withheld information about who is being detained and why has also repeatedly warned in ominous tones that more terrorist attacks are just around the corner. Secrecy lends credibility to paranoia, which in turn justifies increased secrecy and increased power.

Officials who want greater authority always prefer to work in secret so that they cannot easily be called to account. And when complaints are raised, lack of available information makes it all the more difficult to prove that violations have occurred.

Thus, it is entirely predictable that the current administration has made a fetish of secrecy, for secrecy increases power, not only overseas but in our own country.

Authoritarianism never attacks the institutions of freedom at their strongest point; it always attacks them at their weakest. Even before Sept. 11, the country's immigration laws were often arbitrary and highhanded. Therefore it is no surprise that the administration's latest grabs for executive authority have targeted noncitizens, who have no right to representation and no natural constituency to defend them. The present conflict may not be a war on Islam. But it is increasingly turning out to be a war on noncitizens.

The members of this administration do not want to be dictators. They simply do not want anyone getting in their way. They do not want to be autocrats. They simply do not want to be second-guessed when they know that they are right. They do not want to be antidemocratic. They simply want to be able to act unilaterally in the interests of righteousness. If we would merely allow them to go about their business in secret, and with as much authority as they feel they need, they will take care of things for us.

In times like these, it is a tempting offer, but we should refuse it. For what profit has a country if it shall control the whole world and lose its democratic soul?


Jack M. Balkin is a professor of constitutional law and the 1st Amendment at Yale Law School