Assessing the New Normal: Liberty and Security for the Post-September 11
United States

Introduction

Therefore pass these Sirens by, and stop your men’s ears with wax that none of them may hear; but if you like you can listen yourself, for you may get the men to bind you as you stand upright on a cross piece half way up the mast, and they must lash the rope’s ends to the mast itself, that you may have the pleasure of listening. If you beg and pray the men to unloose you, then they must bind you faster.

Homer, The Odyssey

Legal scholars have often invoked the story of Ulysses and the Sirens to explain the Constitution’s role in American life. Just as Ulysses had himself tied to the mast to save himself from the Sirens’ song, so have we tied ourselves to the Constitution to keep short-term impulses from compromising a long-term commitment to a free society. The metaphor that describes the Constitution is equally apt for the rule of law more broadly. In a society bound by the rule of law, individuals are governed by publicly known regulations, applied equally in all cases, and enforced by fair and independent courts. The rule of law is a free society’s method of ensuring that whatever crisis it faces, government remains bound by the constraints that keep society free.

This report, the third in a series, documents the continuing erosion of basic human rights protections under U.S. law and policy since September 11, 2001. The reports address changes in five major areas: government openness; personal privacy; immigration; security-related detention; and the effect of U.S. actions on human rights standards around the world. Changes in these arenas began occurring rapidly in the weeks following September 11, and have been largely sustained or expanded in the two years since. As Vice President Dick Cheney explained shortly after September 11: “Many of the steps we have now been forced to take will become permanent in American life,” part of a “new normalcy” that reflects “an understanding of the world as it is.” Indeed, today, two years after the terrorist attacks, it is no longer possible to view these changes as aberrant parts of a short-term emergency response. They have become part of a “new normal” in American life.

Some of the changes now part of this new normal are sensible and good. Al Qaeda continues to pose a profound threat to the American public, and the government has the right and duty to protect its people from attacks. A new national security strategy aimed at reducing this threat is essential. We thus welcome efforts to improve coordination among federal, state, and local agencies, and between law enforcement and intelligence officials. Equally welcome would be greater efforts to protect the nation’s critical infrastructure supporting energy, transportation, food, and water; and efforts to strengthen the preparedness of our domestic “front-line” forces - police, fire, and emergency medical teams, as well as all those in public health. Many of these changes are past due.

But the new normal is also defined by dramatic changes in the relationship between the U.S. government and the people it serves - changes that have meant the loss of particular freedoms for some, and worse, a detachment from the rule of law as a whole. As this report details, the United States has become unbound from the principles that have long held it to the mast.

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