Security vs. Rights

TYPES OF TERRORISM
www.securelaw.info Copyright, James F. Pastor, 2009

Security vs. Rights
How do we balance these critical principles?
Terrorism Implications
• Two critical principles:

Security vs. Rights
• Mutually inconsistent
• More security = less rights (or conveniences)
• Less security = more rights (or conveniences)
• Two critical questions:

How much security is necessary?
What rights (if any) should be affected?
DECISION CONTINUUM
fear Convenience

SECURITY
fear Rights

DECISION CONTINUUM
fear Convenience

Security versus Convenience
• Chertoff considers one of his
"biggest obligations" in his
remaining months in office to
eliminate the "not-in-my-
backyard attitude" when it
comes to relatively small costs
and inconveniences.
• This will include a campaign to
spread a message of shared
sacrifice "in as plain English as I
can, as often as I can and in as
many places as I can."
http://www.usatoday.com/news/nation/2
007-09-05-homeland_N.htm?csp=34 on
September 6, 2007

Check point on a road connecting
Jerusalem and Hebron in the West Bank
during high alert
http://www.foxnews.com/photoessay/0,4644,3739,00.html#3_0 on April 9, 2008

Convenience vs. Security



Rights vs. Security
• An MIT student wearing what
turned out to be a fake bomb
was arrested at gunpoint Friday
at Logan International Airport.
• Star Simpson, 19, had a
computer circuit board and
wiring in plain view over a black
hooded sweatshirt she was
wearing.
• "She said that it was a piece of
art and she wanted to stand out
on career day."
http://www.foxnews.com/story/0,2933,297593,00.html on
September 21, 2007

IED’s in the US?
• About 300 IED attacks occurring each
month beyond the borders of Iraq and
Afghanistan.
• Will IED attacks inevitably appear in
the United States in significant
numbers?
• "It's one thing to have bombs going off
in Baghdad, but it will be quite another
thing when guys with vests full of
explosives start blowing themselves
up in Washington," said the Navy
analyst.
• "That has all sorts of repercussions,
for the economy, for civil liberties.”
http://www.msnbc.msn.com/id/21053750/ on September 30,
2007

Would this affect your sense of
Security vs. Rights?

Is this our choice?
<>

Ironic?

“Terrorism- Help us defeat it”

Freedom vs. Security?
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United States elsewhere.”

Security vs. Rights
“The man who trades freedom for security does not

deserve nor will he ever receive either.”
Benjamin Franklin
“The constitution is not a suicide pact.”

Often Attributed to Abraham Lincoln
But was first used by Justice Robert H. Jackson in Terminiello v. Chicago, a
1949 free speech case decided by the U.S. Supreme Court.
In his dissent, he concluded: "The choice is not between order and liberty. It is
between liberty with order and anarchy without either. There is danger that, if
the court does not temper its doctrinaire logic with a little practical wisdom, it
will convert the constitutional Bill of Rights into a suicide pact."

Security versus Rights
Thomas Jefferson wrote (regarding Louisiana Purchase in

1803):
"[a] strict observance of the written law is doubtless one of

the high duties of a good citizen, but it is not the highest.
The laws of necessity, of self-preservation, of saving our
country when in danger, are of higher obligation.
To lose our country by a scrupulous adherence to the
written law, would be to lose the law itself, with life, liberty,
property and all those who are enjoying them with us; thus
absurdly sacrificing the ends to the means."

Security versus Rights
In 2006, Judge Richard Posner of the Seventh Circuit Court of Appeals and
professor at the University of Chicago Law School, wrote a book called "Not
a Suicide Pact: The Constitution in a Time of National Emergency."
Posner argues that facing terrorism and the threat of WMD’s, the scope of
constitutional rights must be adjusted in a pragmatic but rational manner.
Using cost-benefit analysis to balance the harm new security measures
inflict on personal liberty against the increased security those measures
provide, Posner comes down, in most but not quite all respects, on the side
of increased government power.
Posner argues that terrorist activity is sui generis—it is neither “war" nor
“crime"—and it demands a tailored response, one that gives terror suspects
fewer constitutional rights than persons suspected of ordinary criminal
activity.
ANGLO-SAXON LEGAL
PRINCIPLE OUTMODELED?
• Consider the legal principle that “it is better that a thousand guilty go
unpunished lest one innocent man be wrongly punished.”
• DHS Secretary Michael Chertoff stated “the balance becomes

somewhat different when we aim to prevent attacks. You must ask
yourself this question—whether you would be satisfied to be
constrained by slow moving processes if the consequence would be to
allow an attack go forward that would kill thousands of people or
perhaps millions of people, including ones own children.”
• He stated that legal traditions enshrined in criminal law and laws

governing war might not "adequately reflect" the 21st century threat,
"where we have non-state networks capable of waging war as
effectively and destructively as nation states could a century ago.
Source: www.theregister.com/2007/05/15/surveillance_scutiny/

Threat
Rights Remedies Security
Under-reaction Over-reaction

Political Positions
Democrats Republicans
Crime War
Defensive Offensive
Rights Security

Political Distinctions
• Not “right” versus “wrong”
• Not “evil” versus “good”
• Based on “worldview”
• Ultimately based on notion or understanding of
“human nature”
• Are people inherently good or evil?
• Your answer determines your “solution”
• Talk versus Fight
Who doesn’t want peace?
• Do you want peace?

• I also want peace!
• How is peace achieved?

Who knows the road to Peace?
• Peace achieved through conflict?
• Peace achieved through dialog?
• Is either means exclusive of the other?
• While we fight each other over the “proper” road
to peace, we lose the larger “war!”
• Fanaticism vs. Freedom
• Freedom is not free nor is it guaranteed!

Freedom or Fanaticism?

Are We At The Crossroads?

PERSONAL ANSWER!

QUESTIONS?
Please contact
SecureLaw Ltd.
312-423-6700
www.securelaw.info

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TYPES OF TERRORISM

www.securelaw.info Copyright, James F. Pastor, 2009

• Two critical principles:

• Two critical questions:

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

http://www.foxnews.com/photoessay/0,4644,3739,00.html#3_0 on April 9, 2008

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

“The man who trades freedom for security does not

“The constitution is not a suicide pact.”

www.securelaw.info Copyright, James F. Pastor, 2009

Thomas Jefferson wrote (regarding Louisiana Purchase in

"[a] strict observance of the written law is doubtless one of

www.securelaw.info Copyright, James F. Pastor, 2009

• DHS Secretary Michael Chertoff stated “the balance becomes

• He stated that legal traditions enshrined in criminal law and laws

www.securelaw.info Copyright, James F. Pastor, 2009

Rights Remedies Security

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

• Do you want peace?

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

www.securelaw.info Copyright, James F. Pastor, 2009

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