It is true that when we are surprised and hurt, we tend to overreact—but only with the benefit of hindsight can a reaction be separated into its proper and excess layers. In hindsight we know that interning Japanese-Americans did not shorten World War II. But was this known at the time? If not, shouldn't the Army have erred on the side of caution, as it did? Even today we cannot say with any assurance that Abraham Lincoln was wrong to suspend habeas corpus during the Civil War, as he did on several occasions, even though the Constitution is clear that only Congress can suspend this right. (Another of Lincoln's wartime measures, the Emancipation Proclamation, may also have been unconstitutional.) But Lincoln would have been wrong to cancel the 1864 presidential election, as some urged: by November of 1864 the North was close to victory, and canceling the election would have created a more dangerous precedent than the wartime suspension of habeas corpus. This last example shows that civil liberties remain part of the balance even in the most dangerous of times, and even though their relative weight must then be less.
Lincoln's unconstitutional acts during the Civil War show that even legality must sometimes be sacrificed for other values. We are a nation under law, but first we are a nation. I want to emphasize something else, however: the malleability of law, its pragmatic rather than dogmatic character. The law is not absolute, and the slogan "Fiat iustitia ruat caelum" ("Let justice be done though the heavens fall") is dangerous nonsense. The law is a human creation rather than a divine gift, a tool of government rather than a mandarin mystery. It is an instrument for promoting social welfare, and as the conditions essential to that welfare change, so must it change.
Civil libertarians today are missing something else—the opportunity to challenge other public-safety concerns that impair civil liberties. I have particularly in mind the war on drugs. The sale of illegal drugs is a "victimless" crime in the special but important sense that it is a consensual activity. Usually there is no complaining witness, so in order to bring the criminals to justice the police have to rely heavily on paid informants (often highly paid and often highly unsavory), undercover agents, wiretaps and other forms of electronic surveillance, elaborate sting operations, the infiltration of suspect organizations, random searches, the monitoring of airports and highways, the "profiling" of likely suspects on the basis of ethnic or racial identity or national origin, compulsory drug tests, and other intrusive methods that put pressure on civil liberties. The war on drugs has been a big flop; moreover, in light of what September 11 has taught us about the gravity of the terrorist threat to the United States, it becomes hard to take entirely seriously the threat to the nation that drug use is said to pose. Perhaps it is time to redirect law-enforcement resources from the investigation and apprehension of drug dealers to the investigation and apprehension of international terrorists. By doing so we may be able to minimize the net decrease in our civil liberties that the events of September 11 have made inevitable.