U.S. Army War College, 

University of Pennsylvania Law School, and

Institute for Strategic Threat Analysis and Response

Homeland Security and Civil Liberties

Compiled by 

Leonard Wong 

and 

Douglas C. Lovelace, Jr.

Key Points:

• The Global War on Terrorism (GWOT) is a challenge unprecedented in American history. 

It dictates a reexamination of the balance between national security and civil liberties to 

accomplish the dual goals of preventing future attacks and maintaining our commitment 

to the U.S. Constitution. 

• Almost three years into the GWOT, we need to review domestic and international laws and 

policies to consider their continued viability and long-term implications. This includes 

the USA-PATRIOT Act and its interaction with the Foreign Intelligence Surveillance Act, 

U.S. criminal law, and international laws such as the Hague and Geneva Conventions.

• The tension between civil liberties and homeland security is extraordinarily complex 

with immigration policy, criminal law, privacy, First Amendment, and separation of

powers dimensions, among others.

• Americans not only cherish their civil liberties but believe in them as guiding principles 

for all human interaction. They do not surrender them lightly and any compromises in 

them will be tolerated only to the extent absolutely necessary and for a fi nite period of 

time. 

The University of Pennsylvania Law School, the Institute for Strategic Threat Analysis and 

Response, and the Strategic Studies Institute of the U.S. Army War College conducted a conference 

dealing with homeland security and civil liberties on June 18, 2004, in Philadelphia, Pennsylvania. The 

event brought together experts from diverse organizations such as the Federal Bureau of Investigation, 

Department of Homeland Security, U.S. armed forces, Philadelphia Arab American Development 
2

Corporation and several law schools. The 

conference examined national security issues 

related to civil liberties, immigration policy, 

privacy issues, fi rst amendment rights, and the 

balance of executive and judicial power in relation 

to civil liberties and homeland security. Over 175 

people interested in the intersection of national 

security, civil liberties, and associated legal issues 

participated in the conference. Highlights of their 

discussions follow.

Threats to Security and Civil Liberties

Widespread agreement existed among the 

conference speakers that there are determined 

people in the world, intent on bringing ruin to 

the United States. At the same time, speakers 

widely agreed that in the wake of September 

11th, many civil liberties had been curtailed 

or suspended. Despite agreement on those 

issues, differences emerged among the panelists 

concerning how much risk to national security 

or civil liberties should be taken. The need 

to achieve an appropriate balance of these 

seemingly competing goals was evident. 

Lawyers from the Department of Homeland 

Security, Federal Bureau of Investigation, and 

the U.S. Army called for aggressive prosecution 

of the GWOT, while lawyers advocating civil 

liberties argue strongly for the safeguarding of 

individual rights, lest we cede victory to terrorists 

through the compromise of principles that defi ne 

our view of a liberal democracy. Because the 

GWOT will likely last longer than any war in 

recent history, some perceive the duration of 

the potential compromise or suspension of civil 

liberties to be open-ended and, for that reason, 

very worrisome. Prophetically, some conference 

participants suggested that judicial review 

could and should shed light on the legitimacy of 

current abridgements of civil liberties, including 

the rights of detained persons, and help inform 

domestic and global public opinion. How much 

judicial review is appropriate was the subject of 

considerable debate. We need to evaluate many 

of the actions taken in the aftermath of September 

11th to determine whether processes currently 

in use should be viewed as temporary or be 

formalized and institutionalized for the future.

Immigration Policy and Criminal Procedure

Discussions concerning immigration policy 

and criminal procedure brought out a key 

question to be debated: Should the primary role 

of law, particularly criminal law, be to prosecute 

terrorists when captured or to prevent terrorists 

from executing their next attack? While the 

body of U.S. criminal law and the potential for 

prosecution logically serves, to some extent, 

as a deterrent to criminal behavior including 

terrorism, criminal law does not spring into action 

until a crime has been committed. It is reactive by 

design. Therefore, in the view of some conference 

participants, the use of criminal law actively to 

prevent bad acts poses a great threat to the fabric 

of our democracy. Furthermore, they believe 

that global anti-Americanism will stem from 

the perception, or perhaps reality, that foreign 

citizens’ liberties will be traded for the security of 

U.S. citizens through practices such as profi ling 

or secret arrests. Others believe that the reactive 

nature of criminal law breeds complacency, 

which is the greatest threat to U.S. security, and 

we should be asking ourselves if we are doing 

enough to prevent future terrorist attacks. 

Privacy

Much of the discussion concerning privacy 

issues and the GWOT centered on the Foreign 

Intelligence Surveillance Act (FISA) of 1978, and 

later reinforced with the USA-PATRIOT Act. To 

some, the USA-PATRIOT Act is exemplifi ed by 

librarians having to surrender data on library 

users and a shift from foreign intelligence to 

domestic law enforcement. To others, the USAPATRIOT Act is the fi rst step in updating FISA, 

which was created in an environment where 

communication via cellphones, chat rooms, 

and email was unknown. Some conference 

participants argued that reactions to the USAPATRIOT Act should be directed at Congress, 

which created the legislation, not at the 

Administration. Many conference participants 

agreed that it is time to review the provisions of 
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the USA-PATRIOT Act to reassess the extent to 

which intelligence information can and should be 

collected and used for criminal prosecution. 

First Amendment Rights

In the GWOT, certain materials or activities 

(e.g., a book on explosives) may be potential 

evidence as an instrument of criminal activity. 

Nonetheless, the First Amendment of the U.S. 

Constitution protects ownership and use of 

many forms of printed material and speech. 

Furthermore, the use of evidence gathered in 

violation of an individual’s First Amendment 

rights to possess it may be prohibited. Excluding 

this evidence based on the First Amendment 

may incur costs; e.g., not preventing an incident 

that could have been stopped or having an antiterrorism policy that could be very effective but 

is only marginally so. One view of the First 

Amendment issue is that once we acknowledge 

that there is indeed a cost to society in either 

preserving or abridging First Amendment rights 

while fi ghting the GWOT, then society must 

decide how to allocate that cost, either through 

legislation or through the courts. 

On the other hand, another perspective 

maintains that the government has a voracious 

appetite for information. As the government 

develops digital dossiers on its citizens by 

compiling data from a wide range of sources, 

how to deal with such information emerges as a 

critical issue. One possible solution is to parallel 

the intelligence community’s “need to know” 

restrictions and only allow viewing of certain 

elements by certain people. Another approach 

would be to develop audit trails and oversight 

for any agencies “mining” and analyzing the 

data. In any case, the focus of this perspective 

is minimizing the dilution of First Amendment 

rights resulting from increased governmental 

collection of information due to security concerns 

since September 11th.

Separation of Powers

Panelists pointed out that while the Congress 

has the Constitutional power to take the nation to 

war, the President has the power and responsibility 

to protect the nation from attack through operation 

of the “Commander-in-Chief clause.” Many 

question whether this balance of power between 

the Legislative and Executive branches remains 

true to the intent of the Founding Fathers, given 

recent events. One perspective maintains that the 

current administration has over-emphasized the 

Commander-in-Chief clause. This view maintains 

that too much legal work is being conducted 

to fi nd loopholes through which the President 

can usurp Congressional powers; e.g., opting 

in or out of international law, including treaties 

ratifi ed by Congress. A differing perspective 

asserts that the nation is currently at war and the 

Commander-in-Chief should be free to exercise 

his Constitutional powers to their fullest extent to 

protect the nation. He is entitled to request legal 

advice on current laws and treaties to enable 

him to do so. Opponents to this far reaching 

interpretation of the “Commander-In Chief 

Clause” fear that the clause could swallow up the 

warmaking powers allocated by the Constitution 

to the legislative branch..

Conclusion

The Global War on Terror is still in its early 

stages and has not been suffi ciently defi ned to 

provide a basis for resolving the many critical 

issues; continued public and private debate is 

necessary. Nonetheless, one point emerged 

clearly from this conference: Americans not only 

cherish their civil liberties but believe in them 

as guiding principles for all human interaction. 

They do not surrender them lightly and any 

compromises in them will be tolerated only to the 

extent absolutely necessary and for a fi nite period 

of time. 
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*****

The views expressed in this brief are those 

of the authors and do not necessarily refl ect the 

offi cial policy or position of the Department of 

the Army, the Department of Defense, or the U.S. 

Government. This conference brief is cleared for 

public release; distribution is unlimited.

*****

More information on the Strategic Studies 

Institute’s programs may be found on the Institute’s 

Homepage at http://www.carlisle.army.mil/ssi/ or 

by calling (717) 245-4212.