Activists and observers from across the ideological spectrum agree that civil liberties have been constrained in the United States since the September 11, 2001 terrorist attacks. They disagree, however, on whether such restrictions are inappropriately harsh or even unconstitutional. At an OSI Forum on November 13, 2002, lawyers Kenneth Anderson and David Cole discussed the ramifications of and legal basis for the U.S. government's actions thus far in restricting civil liberties for citizens and non-citizens alike and what the future may hold now that the Republican Party controls both houses of Congress.
In his remarks, Cole, co-author of Terrorism and the Constitution, a recently published book about civil liberties since September 11, argued that the current emphasis on "preventive law enforcement" has already had dire consequences for American society. He pointed out that laws such as the USA Patriot Act, which sailed through Congress in the wake of the attacks, have allowed authorities to detain suspected terrorists (or, even more egregiously to him, "supporters of terrorism") without specific charges and to target non-citizens for harassment and deportation. Such developments, he thinks, are antithetical to basic human rights and will only lead to a culture of distrust and intolerance throughout the country.
While agreeing with much of what Cole said, Anderson was more willing to justify so-called extrajudicial measures to combat terrorism. He made a distinction between "criminals" and "enemies," noting that the U.S. legal system is based on arresting and prosecuting the former after they transgress. In times of war such as these, he said, it is acceptable and even necessary for authorities to identify the latter before they act.