major casualties, severe economic loss, and social disruption.1 The danger of future terrorist attacks on the United States is both real and serious.

At the same time, inappropriate or disproportionate responses to the terrorist threat also pose serious dangers to society. History demonstrates that measures taken in the name of improving national security, especially in response to new threats or crises, have often proven to be both ineffective and offensive to the nation’s values and traditions of liberty and justice.2 So the danger of unsuitable responses to the terrorist threat is also real and serious.

Given the existence of a real and serious terrorist threat, it is a reasonable public policy goal to focus on preventing attacks before they occur—a goal that requires detecting the planning for such attacks prior to their execution. Given the possibility of inappropriate or disproportionate responses, it is also necessary that programs intended to prevent terrorist attacks be developed and operated without undue compromises of privacy.


Premise 2. The terrorist threat to the United States, serious and real though it is, does not justify government authorities conducting activities or operations that contravene existing law.


The longevity of the United States as a stable political entity is rooted in large measure in the respect that government authorities have had for the rule of law. Regardless of the merits or inadequacies of any legal regime, government authorities are bound by its requirements until the legal regime is changed, and, in the long term, public confidence and trust in government depend heavily on a belief that the government is indeed adhering to the laws of the land. The premises above would not change even if the United States were facing exigent circumstances. If existing legal authorities (including any emergency action provisions, of which there are many) are inadequate or unclear to deal with a given situation

1

For example, the National Intelligence Estimate of the terrorist threat to the U.S. homeland provides a judgment that “the U.S. Homeland will face a persistent and evolving terrorist threat over the next three years. The main threat comes from Islamic terrorist groups and cells, especially al-Qa’ida, driven by their undiminished intent to attack the Homeland and a continued effort by these terrorist groups to adapt and improve their capabilities.” See The Terrorist Threat to the U.S. Homeland, National Intelligence Estimate, July 2007, available from Office of the Director of National Intelligence, Washington, D.C.

2

Consider, for example, the 1942 internment of U.S. citizens of Japanese origin in the wake of the Pearl Harbor attack. The United States formally apologized to the Japanese American community for this act in 1988, and beginning in 1990 paid reparations to surviving internees.



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