Sunday, October 06, 2002

The Difficult Balance Between Liberty and Security
Even more than last year, the Supreme Court's new term begins in the shadow of Sept. 11, 2001. The terrorist attacks led Congress to pass laws that increase the ability of federal officials to investigate not just terrorists but all Americans. While the Supreme Court may begin to hear challenges to those laws later in its term, which begins tomorrow, it already has on its docket several cases that could reveal how it draws the line between liberty and security.

In hearing these cases, the justices will inevitably face one of the most basic and profound questions for any system of justice: how to ensure that the most serious restrictions on liberty are reserved for those who pose the most serious threats to security. Few Americans would disagree with the principle that the punishment should fit the crime. But whether the Constitution requires some degree of proportionality is unclear. Unfortunately, based on the justices' past rulings, it may be a mistake to rely on the Supreme Court to restore some sense of balance.

Of the cases the court has already agreed to hear, three involve laws passed after highly publicized crimes in the 1990's: the Oklahoma City bombing and the murders of Polly Klass and Megan Kanka. Like the Sept. 11 attacks, these crimes created widespread fear and unrealistic public demands for security at the expense of liberty. Although the justices have been eager to expand their own power in relation to that of Congress and the president, they have been reluctant to strike down or modify excessively broad laws adopted in haste after especially dramatic or horrific events.

In Demore v. Kim, the issue is whether Congress, in responding to terrorism after the Oklahoma City bombing, acted unconstitutionally when it passed a law in 1996 requiring the attorney general to take into custody all noncitizens who commit certain crimes and hold them without bail before deporting them. The law is being challenged by a South Korean citizen who served three years in prison for petty theft and was seized by the Immigration and Naturalization Service the day after his release. In striking down the mandatory detention, a federal appeals court said the plaintiff's treatment was disproportionate to his crime.

How the Supreme Court decides this case may give some indication of its view of the U.S.A. Patriot Act, which Congress passed a year ago and which gives the attorney general even broader powers to detain criminal aliens. Two years ago, the Supreme Court narrowly held that the indefinite detention of certain aliens might violate the Constitution, although it made an exception for cases involving terrorism (which it did not define). Yet the court has traditionally given Congress broad discretion over immigration and historically has not insisted upon proportionality between the length of the detention and the seriousness of the crime in cases involving noncitizens.