Civil Liberties and Terrorism: Privacy Rights and Protecting Society from External Threats

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September 1, 2006
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Marla J. Feldman

Since September 11, a conversation has been brewing within the American Jewish community about how to balance our historic support for civil liberties with our growing awareness of the risks of terrorism and the need to protect ourselves from external threats. How much privacy are we willing to give up in exchange for a greater feeling of security? And how much risk are we willing to bear in order to live in a free and open society?

Jewish tradition can provide guidance to these questions. Both the Bible and the Talmud outline rules for securing the privacy of one’s home and granting protection against intrusion by creditors, neighbors, and agents of the government: “When you make a loan of any sort to your neighbor, you must not enter his house to seize his pledge. You must remain outside, while the man to whom you made the loan brings the pledge out to you.” (Deuteronomy 24:10-11) Not only is physical intrusion prohibited, but surveillance of private space was deemed a violation of privacy rights. The Talmud identifies a category of “harm caused by seeing,” hezeq re’iyya , when one’s privacy is violated by the prying eyes of another. A well-known reference to this value is found in a midrash on the story of Balaam, who blessed the Israelites, proclaiming: How fair are your tents, O Jacob, Your dwellings, O Israel! (Numbers 24:5) The midrash ( Baba Batra 60a) explains that the tent openings did not face one another in order to secure their privacy, and it was this respect for privacy that merited Balaam’s blessing. While Jewish law imposes the obligation to block a view into a neighbor’s home, lest a neighbor’s privacy is inadvertently invaded, American law puts the onus on homeowners to protect their own privacy by installing blinds or curtains.

Jewish law also addresses the power of law enforcement to use surreptitious means to discover communal threats. The Talmud notes that even for capital offenses, with very limited exceptions, spying and entrapment were not permissible means to discover the intent of a would-be offender. (See, e.g., Mishnah Sanhedrin 7:10, which outlines a narrow exception in the case of idolatry.) The criminal justice laws were overwhelmingly protective of the rights of defendants, and guilt could not be based on circumstantial evidence or the testimony of only one person, as is possible within American jurisprudence.

And yet, set against all these privacy rights is the overarching principle of pikuah nefesh, saving a life, which can override nearly all other commandments. When lives are at stake, we want to use all means possible to save those lives, even if it means relinquishing some of our individual freedoms. Thus we invest law enforcement agencies with considerable power to protect our communal welfare.

So how do we strike a balance between the values of privacy and individual rights and the need to protect society? While we, as Jews, understand the need for vigilance and swift action in the face of a terrorist threat, our historical experience also teaches us what can happen when government agencies have too much power, when law enforcement operates without checks and balances, when courts are stripped of their moderating influence, and when individual liberties are subject to the whim of a fearful public.

And so we must ask these difficult questions: Does the new antiterrorism regime make us safer or only create the illusion of security? Do the new technologies unleashed on the American public help find and detain terrorists, or do they merely turn us all into suspects? When should we willingly relinquish our civil liberties for the sake of our communal security, and at what point have we given up too much? The answers to these questions will define and shape the post–September 11 America that we will bequeath to our children.

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Rabbi Marla J. Feldman, Esquire, is Director of the Commission on Social Action of Reform Judaism.

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