Beware Paranoia
Although Professor Bishop's article deals primarily with international terrorism, as a practicing defense lawyer I am aware of and concerned with its ramifications and meaning in our own country. Although we do not have international terrorism per se in our country, it is certainly analogous to the hijackings we have from time to time, the extremist groups such as the Ku Klux Klan and other political activist groups, and the increasing rampage of crime of which we are all aware.
There is an old adage at law that hard cases make bad law, and this is true. Ku Klux Klan members, hijackers, and presidential assassins are all examples of people who commit nefarious deeds, and it is easy for the law to treat them differently. However, the whole basis of our system is due process of law, and we cannot forget that, even when dealing with these extreme groups. The internment of American citizens of Japanese ancestry that was upheld by our Supreme Court in the Korematsu decision of 1944 was probably the darkest hour in the history of American jurisprudence. Regardless of the heinousness of any crimes committed, defendants, including terrorists, are entitled to a fair trial. Our Constitution guarantees that all people in this country are safeguarded' from general searches of their homes and persons and insures they are presumed to be innocent. Unquestionably, these Constitutional rights accorded terrorists are not always popular, but they are rights that we must continue to provide in order to maintain our democratic free society.
No doubt, in a time of war, there may be necessary emergency measures that do curtail some of our civil liberties; but these should be by legislative act, not by judicial fiat. In our day-to-day lives we see examples where extreme situations have caused some curtailment of our civil liberties; for example, the search we must go through upon entering an airplane. This is justifiable because when you weigh the danger of possible hijacking as opposed to the slight inconvenience of having our person searched, the former outweighs the latter.
In conclusion, there is a hue and cry heard throughout our country in favor of "law and order" and to stop "mollycoddling" persons charged and convicted with crime. Unquestionably, crime is one of the greatest issues facing our country today but it is easy to progress from being pro law and order to a national paranoia. It would be easy to say the end justifies the means. This is not true. Civil liberties cannot be abridged even in dealing with terrorists. Our Constitution protects you and me and other good, law-abiding citizens in our country, not the criminals or even terrorists. If they happen to benefit from our system, so be it; it's worth the price.
President, National Association of Criminal Defense Lawyers
