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Liberty, Security, and the USA PATRIOT Act
An excerpt from John Ashcroft and Viet Dinh’s chapter in Confronting Terror: 9/11 and the Future of American National Security.


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Since the 9/11 attacks, Americans have been told that a choice must be made between security and liberty. Frequently, it is suggested that there is a necessary balancing act between individual liberty and security, where enhancement of one is only possible at significant cost to the other. In the search for this elusive balance, commentators often cite Benjamin Franklin’s dictum that those who “give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Liberty (let alone “essential liberty”) is not to be traded for safety (let alone “a little temporary safety”). At its core, Franklin’s maxim is correct. Security is not an end in itself, but rather a means to the greater end of liberty.

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Freedom is a value that is without parallel. Freedom never requires balancing. What it requires is enhancement. Freedom must be supported and safeguarded. Freedom must be secured. Security, then, is not a counterweight to freedom, but rather a means to ensure that freedom remains intact and contributes positively to the character of humanity. Simply put, appropriate security enables freedom, rather than competes against it. Thus, searching for a “balance” between liberty and security is counter-productive because such an approach is based on a false dichotomy. It is the function of security to safeguard liberty. Unless it does, it should not be undertaken.

The essential issue Americans face today is not a trade-off between security and liberty, but rather an inquiry into what liberty entails, and how security is best utilized to protect that liberty. Perhaps Edmund Burke said it best: “The only liberty I mean is a liberty connected with order; that not only exists along with order and virtue, but which cannot exist at all without them.” In other words, true liberty is by necessity an ordered liberty. The stability and legitimacy essential for a government under law can only be obtained through the maintenance of this symbiotic relationship.

Consider liberty without order. Absent order, liberty is an unbridled license allowing men to do as they choose. Liberty without order is unstable, and arguably illegitimate. In such a world, the weak must submit to the will of the strong. One man’s expression of his desires deprives another of his freedom. True, legitimate liberty is achievable only in an ordered society, in which rules and laws govern and limit the behavior of men.

Just as liberty without order is illegitimate and unstable, so too is order without liberty. A society of order without liberty is plausible only by exerting force to compel obedience, thereby creating the mirage of stability. In any ostensible order maintained by brute force, the ruler has no greater claim to the use of force than the ruled. The two are in constant conflict — one seeking to maintain the mirage of stability created by the use of force, the other striving to achieve his freedom by the use of force. Order and liberty are, therefore, not competing concepts that need to be offset to maintain some sort of democratic equilibrium. Rather, they are complementary values symbiotically contributing to the stability and legitimacy of a constitutional democracy.

— John D. Ashcroft is former U.S. attorney general and Viet D. Dinh is a professor of law at Georgetown University. This is excerpted from the new Encounter book, Confronting Terror: 9/11 and the Future of American National Security.



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