Statement of U.S. Senator Russ Feingold Chairman, Senate Committee on the Judiciary Subcommittee on the Constitution, Federalism & Property Rights

Hearing on “Protecting Constitutional Freedoms in the Face of Terrorism”

October 4, 2001

I'd like to welcome all of you to this hearing of the Subcommittee on the Constitution on "Protecting Constitutional Freedoms in the Face of Terrorism." We have a very distinguished panel of witnesses here this morning, and I very much appreciate their willingness to speak with us on such short notice.

Almost as soon as the attacks of September 11 ended, public discussion turned to two issues – how the United States will respond to these terrorist acts, and how we can protect ourselves against future attacks. And almost immediately, discussion of that second issue raised the question of how our efforts to prevent terrorism will affect the civil liberties enjoyed by all Americans as part of our constitutional birthright.

I was greatly encouraged by the words of Senator George Allen, who represents one of the states struck by terrorism, on the day after the attacks. He said:

We must make sure that as we learn the facts, we do not allow these attacks to succeed in tempting us in any way to diminish what makes us a great nation. And what makes us a great nation is that this is a country that understands that people have God-given rights and liberties. And we cannot--in our efforts to bring justice--diminish those liberties.

I agree with Senator Allen, and I believe that one of the most important duties of this Congress in responding to the terrible events of September 11 is to protect civil liberties, which derive, of course, from our Constitution. Now that is not to say that no measures to strengthen law enforcement can be enacted. There are many things we can do to assist the Department of Justice in its mission to catch those who helped the terrorists and prevent future attacks. We can and we will give the FBI new and better tools. But we must also make sure that the new tools don't become instruments of abuse.

There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government is entitled to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country where people could be held in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, the government would probably discover and arrest more terrorists or would be terrorists, just as it would find more lawbreakers generally. But that wouldn't be a country in which we would want to live, and it wouldn't be a country for which we could, in good conscience, ask our young people to fight and die. In short, that country wouldn't be America.

In a recent article in the L.A. Times, Professor Erwin Chemerinsky, a distinguished law professor at the University of Southern California, put the challenge before us squarely:

Some loss of freedom may be necessary to ensure security; but not every sacrifice of liberty is warranted. For example, people accept more thorough searches at airports even though it means a loss of privacy. But strip searches and body cavity searches would be clearly unacceptable. The central question must be what rights need to be sacrificed, under what circumstances, and for what gain.

I think it is important to remember that the Constitution was written in 1789 by men who had recently won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote the Constitution and the Bill of Rights to protect individual liberties in times of war as well as in times of peace.

There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans during World War II and the injustices perpetrated against German-Americans and Italian-Americans, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam War. We must not allow this piece of our past to become prologue.

Preserving our freedom is the reason we are now engaged in this new war on terrorism. We will lose that war without a shot being fired if we sacrifice the liberties of the American people in the belief that by doing so we will stop the terrorists.

That is why this exercise of considering the Administration's proposed legislation and fine tuning it to minimize the infringement of civil liberties is so necessary and so important. And this is a job that only the Congress can do. We cannot simply rely on the Supreme Court to protect us from laws that sacrifice our freedoms. We took an oath to support and defend the Constitution of the United States. I hope our witnesses today will assist us in our duty to be true to that oath.