Debating the ACLU: Advocacy vs. Policy Analysis

12/16/2014 10:13 am ET Updated Feb 15, 2015

The president of the ACLU, Professor Susan Herman, recently debated the proposition that "Our government is doing the terrorists' work for them by undermining our way of life and our liberties." She presented highly troubling cases in what she called government "dragnets" leading to the arrest and long detention of innocent people. She railed against the lack of transparency and the chilling effects of investigating leaks to the press. I was supposed to take the other side. I could do so by claiming that hordes of brutal ISIS terrorists could sneak across our porous borders any day; that terrorists could take out any one of our cities with a nuclear bomb; and that our water reservoirs -- for instance that of Washington DC -- were not protected by more than three seagulls. Instead I tried to make the case for policy analysis instead of one-sided advocacy. This is a thesis that deserves some elaboration.

Our courts rely almost exclusively on an advocacy method. Both sides (and only two) present strictly opposing views of the same case, using emotive terms and wildly stretched interpretations. Thus, the government may argue that the accused is a bad dude, who abused his mother, was cruel to cats even when he was a child, and spent his time associating with criminals. That he deliberately and in cold blood set fire to a warehouse. The defense will claim that the same person was a master Boy Scout, loved his sister, and had a dog. That he saw a fire and rushed to try to put it out. The jury -- banned from asking any questions or calling witnesses or asking for additional documentation -- is then supposed to find out what truly happened and rule accordingly. The judge is supposed to act merely as a neutral referee.

I am not sure that this advocacy method works well in the courts. (In other judicial systems, the judge can be much more active, for instance, asking questions of his or her own). But I am sure it does not serve us well when it is applied to policy analysis -- the way we find so often in public debates.

Instead, I argued we should assume, from the onset, that we all face two core values: our individual rights and our security, both of which must be well-protected. Hence, we should not a priori privilege either side, and should find ways to determine when we tilt too far in serving one or the other of our various core values. Torture, for instance, was a gross violation of individual rights and yielded little good information and should be banned, but giving up some privacy to allow the TSA to seek to prevent another 9/11 seemed reasonable. (I spelled out this kind of analysis in a recently published book, The New Normal: Finding a Balance Between Individual Rights and the Common Good).

I was surprised to find that when one engages in this kind of policy analysis, the many security measures introduced in the wake of 9/11 very often fall into one of two categories. They either entail little intrusion and are quite effective in enhancing our protection, or have the opposite profile. Thus strengthening the doors that separate the pilot's cabin from the rest of the airline, and insisting that airlines that bring passengers from overseas provide their names and other identifying information before they depart, clearly fall in the first group: very little if any violation of privacy and significant contribution to security. (So do roving wiretaps and national warrants). In contrast, detaining people in Gitmo for years on end, without ever charging them with anything, or extraordinary renditions, fall obviously into the second category: gross violations of rights, with little evidence that they enhance security. These findings make this kind of policy analysis easier than if many of the new security measures involved high intrusion but also engendered high security benefits. About the only such measure I found was the right of the press to publish state secrets. Limiting the press is highly intrusive but not limiting it leads to some publications that greatly endanger our safety, I found out.

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Amitai Etzioni is a University Professor and Professor of International Affairs at The George Washington University and author of the recently published The New Normal: Finding a Balance between Individual Rights and the Common Good.