Though I agree with David Cole’s general thesis that the worst compromises with our liberties are those that take away the liberty of noncitizens in order to enhance the security of citizens, I arrive at some different conclusions from our similar premise.
The always-daunting task of balancing security and liberty is made even more difficult when an administration takes liberty away from noncitizens in an effort to enhance the security of its own citizens. This “we-they” approach minimizes the likelihood that the administration’s constituency will object to the deprivation of liberty. Even when those denied their liberty are citizens, the same problem may exist if they are perceived as “they’s” rather than “we’s.” The detention of more than 100,000 Japanese Americans, many of them citizens, during World War II illustrates this phenomenon. Non-Japanese Americans did not lose the feel of freedom as a result of these unjustified detentions. The same is true today. Most Americans have maintained the feel of freedom because our civil liberties have not been taken away.
If there must be compromises with liberty, it is far better in a democracy that small ones be required of everyone (of the “we’s”) than that large compromises be imposed only on outsiders (“they’s”). That is one reason why, as a civil libertarian, I strongly prefer a limited national ID card to racial profiling. The limited national ID card I propose would contain only the name, photograph, Social Security number, address, and a finger- or retinal print that would prevent identity theft. The card I would favor would be optional. No one would have to carry it. And no one would be asked to show it on the street. The police would not be able to stop citizens and demand “Your papers, please.” But this national telemetric card with a print would be the only identification acceptable in places—such as airports and government buildings—that now appropriately require identification. Anyone who did not show such a card would be subject to far more intrusive inquiries.
Such a limited card would eliminate much of the justification now offered for racial or ethnic profiling. When I first came to Harvard Law School in the 1960s, the few African-American students were often harassed by security officers since they didn’t “look” as if they “belonged” on or near the Harvard campus. ID cards helped to solve that problem. African-American students, by showing their cards, were generally able to avoid being hassled. Of course they were asked to show their cards more frequently than students who looked like they belonged, and that surely is not appropriate. But ID cards clearly reduced the amount of inappropriate hassling of minority students. I suspect the same would be true for Arab and Muslim Americans. By showing the telemetric card they could probably avoid much of the harassment that many have experienced on airplanes and other places.
As I wrote in my book Why Terrorism Works,
As a general proposition, I think it is far better for everybody to be deprived of a little bit of anonymity than for one specific ethnic group to bear a disproportionate part of the burden. I prefer “we-we” compromises over “we-they” compromises. “We-we” intrusions provide a more effective check on abuses, since those whose rights are being compromised have more political power than the “they’s.” An optional national ID card is a “we-we” intrusion, since those who deliberately opt out of the national ID system have made a decision to endure more intrusive searches in exchange for not having to carry the card. In some respects, this is a little like the trade-off people make when they agree to have their automobile identified by a radio computer when crossing bridges and going through tunnels, rather than stopping and paying an anonymous toll.
A variation on this “we-they” theme is this administration’s refusal to compromise the rights of its core constituency, namely the gun lobby. The administration opposes any form of national ID card because the National Rifle Association opposes it: “If they start by registering people, they may end up registering guns.” Attorney General John Ashcroft has also refused the FBI’s request to access the gun-purchase records of people held in detention. The NRA does not care about people being detained, but it cares deeply that the privacy of gun records be held sacrosanct. Nor is the administration willing to create a record center to preserve and exchange information relating to gun markings or ballistics identification.
It is one thing for the administration to fight the war against terrorism with one hand tied behind its back because of constitutional constraints; it is quite another for an administration to fight terrorism that way for ideological and political reasons. This war is being fought with one eye on public-opinion polls and another on the administration’s core constituency. The end result is that neither our security nor our liberty is maximized.