National security fears may have pushed us too far

The Naked Crowd

Reclaiming Security and Freedom in an Anxious Age

Jeffrey Rosen

Random House: 262 pp., $24.95

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Jeffrey Rosen’s timely book is both useful and exasperating. Useful because it raises some of the challenges to American liberty posed by the nation’s response to the current wave of radical Islamic terrorism. Exasperating because it avoids addressing some of them directly.

The author, a professor of law at George Washington University, is known for his unexpected views expressed in the New Republic, where he is legal affairs editor, as well as in other publications.

The clearest, most forceful point to emerge from Rosen’s often all-too-vague prose in “The Naked Crowd” is that in this time of stress and worry we should not take counsel of our fears.

“It is hard to imagine Franklin Roosevelt instituting a color-coded system of terrorist threat levels,” he writes in a critique of the Bush administration’s policies. “The great wartime leaders encouraged citizens to see themselves as part of a larger struggle, rather than encouraging them to focus obsessively on their own vulnerabilities. Without enlightened political leadership that has the courage to challenge the public’s emotionalism, rather than encouraging it at every turn, democracies may not find the inner resources to stay calm in the face of an uncertain future.”

As examples of leadership, Rosen cites former New York Mayor Rudolph W. Giuliani’s steadiness after the Sept. 11 attacks and Abraham Lincoln’s 1838 appeal for Americans anxious about the strife over slavery that preceded the Civil War “never to violate in the least particular the laws of the country, and never to tolerate their violation by others.”

Rosen does not, however, stringently follow his own lead. He could have plausibly argued that the laws of the country should not be violated for some greater good, such as a presumed greater security. The policeman, under pressure to catch his man, will naturally protest that he needs more power than he is given; nothing in the nation’s history demonstrates that is so.

Rosen seems to accept the idea that government must somehow “balance” liberty and security. The current administration is asserting that the constitutional rights of U.S. citizens and the rights of noncitizens can be disregarded, violated in the name of national security. It has taken a couple of federal courts to raise flags of caution about these claims. These federal appeals panels are doing what they are supposed to do in the U.S. system -- checking an overreaching for power in one of the other two branches of government.

Curiously, Rosen puts more faith in Congress to protect American liberties in times of trouble. It is a measure of his often contrarian point of view that he regards himself as a “strict constructionist,” adhering to the specific language of the Constitution. He contends, for example, that the U.S. Supreme Court’s abortion rulings have provoked a political backlash that may hurt privacy rights more than help. On this point, he has not been proved right in the 30 years since Roe vs. Wade.

Rosen correctly notes that Congress resisted some of the more extreme measures proposed in the administration’s draft of the Patriot Act. Pushed by public opinion, he says, it acquiesced with most of the proposals, leaving the courts, if they will, to redress the balance.

But his pessimistic view of U.S. public opinion is hard to square with his faith in Congress as the best protector of liberty. “It seems unrealistic to expect that citizens will demand protections for the privacy of others when they perceive an immediate security benefit for themselves,” he writes.

“A society of anxious exhibitionists who fear loss of control above all will choose security over privacy every time,” he says, referring to people who willingly walk through an airport screening device that strips them naked for screeners to gain protection from a threat that may well be exaggerated.

Rosen’s most practical suggestion in a book muddled by intellectual inconsistencies is to turn what he calls the “Naked Machine” into a “Blob Machine” that will reveal neither sex nor identity, only weapons.