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Conquering fear to protect freedom

Public safety and constitutional rights

Steve Chapman

April 25, 2013

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According to a 19th-century poet named Francis Scott Key, the United States is the "land of the free and the home of the brave." If he were writing those lyrics today, he might add an asterisk with the notation: "Void in the aftermath of terrorism."

In the wake of the Boston Marathon bombings, many people resolved not to let themselves be terrorized. It's obviously impossible to secure every inch of a 26.2-mile race course, but so what? Boston is not going to be scared into giving it up.

"Next year's marathon will be even bigger and better," promised Massachusetts Gov. Deval Patrick. Red Sox slugger David Ortiz told a Fenway Park crowd, "This is our (expletive) city. Nobody is going to dictate our freedom."

A spirit of bold defiance was exactly right, sending mass murderers the message: You can kill some of us, but you can't kill us all, and you can't frighten us from living our lives as free people.

But as in past episodes, that reaction was not universal, particularly in Washington. Sometimes, the preferred view is: Make us safe, no matter what the price.

Following the 9/11 attacks, the government went so far as to classify American citizens as "enemy combatants" and strip them of constitutional protections. Some 1,200 other people living here were secretly arrested and jailed. We invaded Iraq fearing it had weapons of mass destruction that might be used against us.

In retrospect, it's clear the administration overreacted again and again. It was hardly the first to do so: During World War II, Franklin D. Roosevelt interned 120,000 Japanese-Americans. Not until 1988 did Congress apologize for mistakes caused by "race prejudice, war hysteria and a failure of political leadership."

That regrettable experience did not inoculate us against hysterical responses. Fear doesn't always strike out.

An essential feature of free, democratic societies is to respect fundamental liberties even if they may impede the quest for absolute safety. We uphold the Fourth Amendment ban on unreasonable searches, even though it lets some criminals get away. We maintain the Second Amendment right to keep and bear arms, even though some gun owners commit crimes.

But terrifying events can warp our judgment, as the Boston Marathon bombings did. Republican senators urged that the surviving suspect, Dzhokhar Tsarnaev, be designated an enemy combatant so he could be detained without charges and interrogated at length without a lawyer.

Others wanted the administration to use a "public safety" exception to avoid reading him his Miranda rights until he could be questioned to the FBI's satisfaction — something permitted under a corrosive 2010 policy adopted by President Barack Obama's Justice Department.

The administration ultimately rejected both options, possibly because it feared being overruled by the courts for violating the clear commands of the Constitution. But the advocates are not scrupulous about such obligations. They believe those have to be curbed to defuse dangers our shortsighted founders didn't foresee.

But our founders did. They just weren't willing to put public security above individual rights. "Safety from external danger is the most powerful director of national conduct," warned Alexander Hamilton in the Federalist Papers. "Even the most ardent love of liberty will, after a time, give way to its dictates." He and his colleagues designed the Constitution to avert that temptation.

The willingness to trample on rights rests on the dream of being utterly immune to our enemies. That fantasy was behind the invasion of Iraq, a faraway country with a puny military that posed no threat to the United States. It manifested a stubborn national impulse.

"For more than two centuries, America has aspired to a condition of perfect safety from foreign threats," James Chace and Caleb Carr wrote in their 1988 book, "America Invulnerable." But every time we complete a major effort to attain that security, we have "found ourselves exposed to a new array of foreign threats." The safer we are, the more we yearn for protection.

The same holds for terrorism, foreign or homegrown. Americans are amazingly safe from these attacks, which are rare and getting rarer. But as we grow more secure, our tolerance for any remaining risk, or even any potential risk, gets smaller.

It's a losing game. We can't reduce the risk to zero no matter what we do. So we might as well maintain our liberties, muster our courage and take our chances. Because, as David Ortiz might say, it's our (expletive) Constitution.

Steve Chapman, a member of the Tribune's editorial board, blogs at chicagotribune.com/chapman.

schapman@tribune.com

Twitter @SteveChapman13