A Justice Weighs In on Terror Cases

Lawyers and judges must ensure that civil liberties are protected in the government’s efforts to prevent terrorist attacks, Supreme Court Justice Stephen G. Breyer said Monday.

Breyer urged attorneys to question government anti-terrorism practices, including the lack of access to legal counsel for some detainees.

“The Constitution always matters, perhaps particularly so in times of emergency,” Breyer said to the Assn. of the Bar of the City of New York.

By searching for alternative methods that avoid “constitutional mistakes,” lawyers, judges and security officials help the government avoid taking the extreme positions that the Constitution doesn’t matter or that security emergencies don’t matter, Breyer said.

Several court cases contend that the Bush administration has gone too far in the war on terrorism, in tracking and locking up suspects following the attacks of Sept. 11, 2001, and in denying legal representation to fighters captured in Afghanistan and detained at a U.S. naval base in Cuba.

Members of the Supreme Court generally are circumspect in commenting on politics and policy outside their formal opinions. Occasionally, some try to use their public appearances to gently influence the legal system’s agenda.

Breyer said disagreements “about government restrictions, security threats, civil liberties, do not mean that disaster is upon us, but that the democratic process is at work.”

Breyer generally votes with the more liberal justices.

Susan Herman, a professor at Brooklyn Law School, said Breyer’s comments “may be a way for him to present a different point of view” from that of Justice Sandra Day O’Connor, a moderate conservative who after the attacks predicted unprecedented restrictions on Americans’ personal freedom.