Richard Posner The United States is at war. It is common in war for nothing much to happen for months on end; think of the "phony war" that followed Hitler's conquest of Poland in 1939. Now a diffuse but dangerous enemy, itching to get its hands on weapons of mass destruction, apt to precipitate state-level wars in the Middle East and Central Asia, wants to kill us. There are daily reminders at airports and public buildings that we are at war; one has only to walk around the White House to sense a nation at war. Perhaps not since 1941 has the nation itself been in greater danger; it is not just its overseas allies or its status in great-power politics that is in peril. Recognition of this has bound Americans together. Our racial, ethnic, religious and class differences suddenly are less important. The enemy does not discriminate among us; the foreigner, with rare exceptions, will not help us. The common enemy unites America. And no longer do our civil liberties seem immune from critical reflection. They are not, as the naïve suppose, engraved in the Constitution. They are the creation of Supreme Court justices playing variations on themes stated in that document with notable brevity and looseness. They are the point of balance between public safety and personal liberty, and as the relative weights change, the balance shifts. Endangered more gravely than we had supposed possible by an enemy that cannot be defeated by military methods alone, the nation redraws the line between security and liberty. Richard Posner is a judge on the United States Court of Appeals for the Seventh Circuit. -------------------------- Kathleen M. Sullivan In a national security crisis, constitutional rights and liberties are often the first to go. President Lincoln suspended the writ of habeas corpus without the consent of Congress, allowing Northern troops to detain Southern sympathizers without recourse to courts. The Supreme Court later chastised him, but only after the Civil War had ended. President Roosevelt allowed the mass internment of Japanese and Japanese-Americans on the West Coast after the bombing of Pearl Harbor. Congress later authorized reparations, but only after many of the internees were long dead. Since Sept. 11, the Bush administration, like previous administrations in times of national security crisis, has claimed that exigency trumps ordinary procedure. True, we have seen no mass quarantine of Middle Eastern immigrants, nor yet the use of military tribunals to do civil courts' work. But we have seen immigrants placed in secret deportation proceedings, and American citizens suspected of terrorist ties denied counsel and placed in military brigs. We have watched as Congress sped to approve new antiterrorism measures that increased surveillance of e-mail messages and expanded the power of a secret foreign intelligence court to approve wiretaps. We have heard government lawyers argue for dramatic expansion of the category of enemy combatants. Such measures draw little public outcry, for swift and decisive action against amorphous danger is naturally popular, and civil rights and liberties seem a luxury reserved for safer times. But constitutions, like diets, are meant to restrict us most when temptation is greatest. And our constitution, unlike many others, contains no emergency clause providing for its own suspension. In a series of bold decisions, federal judges have acknowledged as much and sought to enforce traditional constitutional values — opening deportation proceedings to the press, requiring access to counsel and questioning the foreign intelligence justifications for domestic surveillance. Such decisions, if upheld, offer us a chance to break the cycle of excessive deference to executive prerogative in national emergencies. A continuous constitution is our greatest protection from terrorism in the first place, and now is the time to hold true to its principles. Kathleen M. Sullivan is dean of Stanford Law School. ----------------------- copyright New York Times _________________________________________________________________ MSN Photos is the easiest way to share and print your photos: http://photos.msn.com/support/worldwide.aspx