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Susan Estrich
12 Feb 2016
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Fear and Freedom


The day after 9/11, I called one of my friends and said we should write a "quickie" book on civil liberties in times of terror. We both knew what was about to happen; any half-serious student of constitutional law could figure it out. We, as a nation, were about to crack down.

And we did. Just as we did at the height of the Cold War. Just as we did during the first wave of anti-Communist frenzy, with the Alien and Sedition Acts. To be sure, there were limits. There was the wonderful story of White House counsel Alberto Gonzales rushing to the hospital bed of the ailing attorney general to try (and fail) to get him to sign off on an expansive surveillance program. There were limits, but not many.

Of course, that was the George W. Bush administration.

Barack Obama, himself a former professor of constitutional law, like my friend and me, was certainly familiar with the lessons of history. Candidate Obama pledged to close Guantanamo and protect civil liberties.

President Obama, it turned out, continued most of the policies of the Bush administration. Even now, even in the wake of all of the news about the full extent of the NSA's data collection program, the changes being proposed are far more modest than many of the president's supporters would like.

What has happened to Obama? Has he forgotten all of those old cases he used to teach that remind us of the dangers and excesses that fear can produce?

I don't think so. What has happened to Obama is simple. He became the president. He started getting the daily briefings. A guy on an airplane tried to detonate a bomb in 2009.

The basic "rule" for civil libertarians is not to ask whether you are comfortable with the decisions being made by the person making them now, but whether you would be comfortable if that power were in the hands of someone else.

If Bush were still president, would Congress be holding impeachment hearings?

There is no question that the protests would be louder if a conservative Republican rather than a liberal Democrat were sitting in the Oval Office. The very fact that Obama is the one defending the NSA and rejecting drastic overhauls to its surveillance program, that it is the Obama Justice Department that is pursuing Edward Snowden and not the Bush appointees, gives some of us pause.

My students ask me: What should we do?

If I were a first-year teacher trying to prove I belonged in front of the classroom, I probably would have some kind of detailed answer. But I've been doing this for decades, and I know what I know — and what I don't.

What should we do? I don't know.

Has the NSA overreached? Almost certainly. Have these surveillance programs saved lives? So we are told. Between the risk of overreaching and the risk of terrorism, which is worse? Easy.

Not long ago, a new exercise studio opened in my neighborhood, promising new techniques for tightening and toning and a free 30-minute massage, to boot. I got a flier under my door. I checked out the website. Once.

Ever since, almost daily, an ad pops up advertising the studio. Of course it's not a coincidence. And the ad doesn't just pop up on my home computer; somehow, someone has figured out that my phone and my tablet are connected to me. Somebody's watching me, and not because they're trying to save me from terror attacks. If I'm not troubled by that, why should I be troubled by the government's collecting data on whom I telephone?

When I first started teaching the old anti-Communist cases, I used to wonder why people didn't see that the government was going too far. Now I understand. Fear.

I yearn for the day when we are no longer afraid, when I can look back and say of course the government shouldn't be spying on its citizens. I yearn for the day when we feel safe enough to worry more about freedom than terror.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



18 Comments | Post Comment
In her Op-Ed, Ms. Estrich wrote: "Ever since, almost daily, an ad pops up advertising the studio ... Somebody's watching me, and not because they're trying to save me from terror attacks. If I'm not troubled by that, why should I be troubled by the government's collecting data on whom I telephone?"

This question is pretty easy to answer. We don't fear the spa because the it can't, based on a mistake or misinterpretation, have us arrested and sent away for life. Also, we can punish or reward the the spa as we choose by giving or withholding our business. Neither of these things is true of government. A powerful government beaucracy, with more information than it needs or can usefully handle, has a far great potential for engaging in misuse or abuse than a local spa. One only has to look at the recent IRS scandal to see the truth of this.

Ms. Estrich also wrote: "I yearn for the day when we are no longer afraid, when I can look back and say of course the government shouldn't be spying on its citizens. I yearn for the day when we feel safe enough to worry more about freedom than terror."

Ms. Estrich, you need to buck up and conquer your fears. Consider this quote from a similar era of unreasoning fear in the past:

"We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular." Edward R. Murrow
Comment: #1
Posted by: Old Navy
Fri Jan 17, 2014 4:18 AM
Speaking about MY fear - I fear our liberals politicians and how they affect my life and that of my family more than I fear Islamic terrorists. The only thing the liberal politicians fear is our vote, now and in the distant furure.
Another thing - I find it hard to believe that the POTUS knows anything about our Constituion let alone being able to teach it.
Comment: #2
Posted by: Oldtimer
Fri Jan 17, 2014 4:48 AM
Obama has as much love and or respect for the constitution as the Nazis had for the Jews of the world and with the help of a rogue Democratic Senate and the propaganda media is treating it the same way as the Nazis treated said Jews.

Obama has as much understanding of the purpose of the constitution as my dog has of Shakespeare.

Obama was a much a true professor of constitutional law as Jerry Lewis in "The Nutty Professor".

Indeed Obama is as much a true and honest POTUS as Bernie Madov was a true and honest financial advisor and broker.

We live in perilous times and we have that lawless deceitful liar and doofus in the Whiitehouse. God help us all!
Comment: #3
Posted by: joseph wright
Fri Jan 17, 2014 7:48 AM
Fear and Freedom?
The better way to say it is that the left has a profound Fear of Freedom because once freedom is tasted and felt the taste and feeling cannot be forgotten. The left needs restriction of freedom to flourish. Freedom is anathema to the left. Leftist ideology withers in the light of economic and political freedom.
Contrary to what Obama says the members of the NSA are no longer our friends and neighbors, but have become watchers, spies and clandestine enforcers of obama's will, ready at a moments notice to inform so that it's master's political ideology may be furthered and freedom of speech, freedom of action and political freedom ended.
Face it folks, we now live in a police state, soon to become a totalitarian state.
Oh I see that the piece of leftist sh*t Podesta is to head up the review of the destruction of our Fourth Amendment rights. Feel better already.
Estrich and her ilk seem not to understand that the greatest terror should be the loss of freedom but gutless wonders that they are they are prepared to sacrifice the freedoms that have been won at high price for a false sense of personal safety.
Obama has no intention of protecting any of you out there from Islamic terrorists.
Proof of same? 1. The manner in which he sacrificed an ambassador and others in Benghazi and lied about it and 2 his intention to let the terror regime in Iran become a nuclear power.
Comment: #4
Posted by: joseph wright
Fri Jan 17, 2014 2:28 PM
Re: joseph wright
One who will sacrifice liberty for security deserves neither. I dont remember which of our founding fathers quoted that, but it is still so very true today. Of course, left wing liberals who are stated constitutional scholars would not know anything about it.
Comment: #5
Posted by: Neal Webb
Sat Jan 18, 2014 7:36 AM

TSA = Terrorist's Segregate Abusers

What we have now in America is far worse than a Police State. A Police State is known to be evil and people with fight against it. What we have now is a system of abusers that are worst than a Police State, a organization of abusers that cloak themselves in honorable words and and documents such as our constitution while they pervert everything the concept of honor and the US Constitution actually represent.

Such evil organizations and political movements have been known before: they were called Maoists, Stalinist, Nazis. Today, we call them Democrats.
Comment: #6
Posted by: SusansMirror
Sat Jan 18, 2014 7:58 AM
Re: Neal Webb
All too true.
"They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." was first written by Benjamin Franklin for the Pennsylvania Assembly in its Reply to the Governor (11 Nov. 1755)
An earlier quote by Franklin appeared in Poor Richard's Almanack (1738) as follows "Sell not virtue to purchase wealth, nor Liberty to purchase power."
How perfectly the words of Franklin in the first quote describe the Democrats, progressives, and RINO's of today and how perfectly the words of the second quote are good admonishment to those presently infesting the Whitehouse.
Comment: #7
Posted by: joseph wright
Sat Jan 18, 2014 12:42 PM
Barack was an untenured lecturer at the U. of Chicago. He taught one course - special topics in constitutional law. (I reviewed his course outline and final exam in 2008. I was not impressed.) There is no rationale that the U. of Chicago used other than affirmative action.
Barack was president of the Harvard law review, but never published anything. nuffin. same deal.
And during his years as a law lecturer, he published nuffin. No journal articles, no law texts, not even conference presentations.
So please, professor estrich, stop calling him a constitutional law professor. That would be like calling Sadie Thompson a gynecologist.
Comment: #8
Posted by: lakerman1
Sat Jan 18, 2014 12:49 PM
Drought in the west, freezing in the east, near genocide in various African nations. It's those damn spawn-o-the-devil Democrats at it again. Why even the coffee tastes bad with them in power. Wake up Susan. The NSA mess did not start under Obama. The folks who crushed your civil rights in the new police state were republicans AND the democrats rolled over and let them. Then we elected a "democrat" (more of a moderate republican, actually) to fix the horrific mess, including shredded constitution, left by the foolish little man from Texas and the new guy, of course, has done nothing of the sort. Absent Edward Snowden, none of this would be on the agenda. You remind me of a friend who says that whenever he hears somebody say that they are a republican, he wonders if they are greedy or just stupid, as "there are no other rational explanations to join the GOP." It's all gray, some things are just grayer than others.
Comment: #9
Posted by: Mark
Sat Jan 18, 2014 11:09 PM
Re: Mark

No not quite but close.

USA in free fall decline. Debt at all time high. Lowest labor participation rate since the Carter [worthless human being and Democrat] years. Food stamp and welfare dependency at a high. Economy about to hit recession again. Lies deceit, lawlessness and corruption in high places rampant. A rogue Dept of Justice and liars and incompetents appointed to the Supreme Court (Kagan and Sotomeyor) and the Supreme Court intimidated (Roberts). Enemies coddled and allies betrayed and abandoned. Middle East handed over to Islamists. Al Quaeda stronger than ever. No coherent foreign policy. Diplomacy reduced to a rank amateur hour Amos n Andy farce. Constitution particularly the Bill of Rights shredded. Race, class and gender tensions at a high. Major cities seeking bankruptcy. EPA run amok. Talk of secession. Scandals, intimidation, spying and incompetents and haters of America at every level of the Administration.

These are the facts. No shades of grey.

Yes ". It's those damn spawn-o-the-devil Democrats at it again" and yes "even the coffee [as everything else] tastes bad with them in power"

Comment: #10
Posted by: joseph wright
Sun Jan 19, 2014 6:28 AM
Funny Joseph, you seem to avoid the NSA/police state issue of Ms Estrich's column and Susan's comments in your rant. Could that be that those pesky historical facts get in the way? It seems that you, like Susan of the mirror, are also blind to the grey nature of reality. Sorry about the coffee.
Comment: #11
Posted by: Mark
Sun Jan 19, 2014 9:56 AM
If Bush had misused the Justice Department, IRS, and other government agencies to punish political opponents as Obama has, there would be impeachment hearings.

If Bush had shoveled sweetheart deals to cronies like Obama has done in green energy, there would be impeachment hearings.

If Bush had claimed he was unaware of so many important things in his administration as Obama has, there would be impeachment hearings.

If Bush had brazenly lied to the American people as Obama has, there would be impeachment hearings.

If Bush appointees had lied to Congress the way Obama appointees have, there would be impeachment hearings.

But give Obama a break, he's black.
Comment: #12
Posted by: pb1222
Sun Jan 19, 2014 10:15 AM
Re: Mark

Clearly you missed the earlier posts. No matter,
Seems like all of your ilk you assume my support of anti constitutional legislation like the misnamed Patriot Act. You could not be more wrong. What is funny is that those libs who decried the Patriot Act ( because it was Bush's) now support the much more invasive spying under Barry boy, support the gutting of the Bill of Rights and support the Government being in their bedroom and everywhere else. No areas of grey here. Just politics. Just typical liberal hypocrisy. Just more liberal propping up of the affirmative action doofus.

Liberals are and always were and always will be the first to sacrifice freedom for political power and the quest for the fiction of Eutopia.

What is not funny is the list of consequences of putting Democrats in power as is set out in my last post and which remains unrebutted.
Comment: #13
Posted by: joseph wright
Sun Jan 19, 2014 11:00 AM
Hard to rebut a rant. I'm sure that it is all true for you, as I am sure that ph1222 would nominate Bush for saint hood.
Comment: #14
Posted by: Mark
Sun Jan 19, 2014 9:11 PM
Re: Mark

No Mark. Just hard to rebut facts. Pesky little things are they not?
Comment: #15
Posted by: joseph wright
Mon Jan 20, 2014 2:57 AM

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

Comment: #16
Posted by: SusansMirror
Mon Jan 20, 2014 6:35 AM
As I have said before, the problem with Liberals and Democrats is they are guided by the "ends justify the means philosophy.

The problem is our important "ends" (goals; such as a perfectly safe society) are typically not achievable. When out "ends" are not achievable we become our "means."

Nothing more painfully confirms such as the liberty we have "given up" in the name of security. I say "given up" loosely because I have "given up" nothing, the government has taken my liberties in the name of keeping me safe.
Azzholes. I do not want or need their definition of "safety".

Just consider our NSA (No Sanctuary Allowed), TSA (Terrorists' Segregate Abusers), a politically motivated IRS (Intimidate Regulate and Subjugate) agency, racists-non-blind Justice Department, and politically motivated Supreme Court.

Not in a terrorists' most wildest wet dreams could they have hoped to be able to violate and sexually abuse as many people on a daily basis as the TSA. The TSA has indeed become the Terrorists' Segregate Abusers.
Not in a terrorists' most wildest wet dreams could they have hoped to violate a person's god given right, in America, a person's 4th amendment right to to be free of unreasonable monitoring from another person. Americans have no sanctuary form government monitoring. Indeed, the NSA has become the No Sanctuary Allowed arm of the terrorists' attack on America.

Is it really sane to rape a woman to keep her from being raped? I mean, such would work as a woman can only be raped by one man at a time. So as long as a government agent is raping a woman a terrorists will just have to wait his turn.

Sounds stupid but that is exactly what our government is doing to use today - abusing us to keep us from being abused.

The point is the goal of a perfectly safe society free from "terrorists" will never be achieved. Do we really want to live in a society where government agents can do anything they wish to us to "keep us safe?"

If you say "yes", then who is going to keep us safe from the government goons looking out for our "safety"?
We have a police force now that will stop us for rolling through a stop sign and then subject us to hours of anal probes in search of drugs? Really? Google David Eckert. A free society will never be free of "drugs" but do we really want to live in a society were we allow the police to butt rape use for hours to check for drugs because we rolled through a stop sign? The police still believe they did nothing wrong because they got a warrant. LOL. Yes, it took several layers of government goons and the will actions of private citizens (doctors) to butt rape David Eckert for hours under the color of law. Sad does not even begin to describe our current situation.

People, it is stupid to give a "friend" (your government) the power to abuse you daily so that you might not get abused by a "terrorists" at some point in the future. I personally find little difference in the boot of a government agent supposedly looking out for my best interest from that of a terrorists wanting to do me harm.
Indeed, I would much rather to be the unwilling victim of "terrorists" than the willing victim of a government agents.

Alas, Americans are weak on freedom as most Americans are ignorant of history and have never felt the boot of governments like Mao tse tung, Stalin, and Hilter, and thus, are not educated enough or wise enough to learn from such history.

But have no fear, the "ends justify the means" philosophy of our government will make sure our progeny learns how the absence of freedoms feels. For today's kids will grow up believing today's government abuses (for our own good) are the norm for a "free" society.

Nothing but a armed revolution will save us now (but it will never happen - so Free America is doomed).
Comment: #17
Posted by: SusansMirror
Mon Jan 20, 2014 7:32 AM

And check this out. Have no doubt, "terrorism" is only an excuse the government is using to subjugate American Citizens to the will of the government. And we are fools to let it continue.

Fools and their freedom are soon parted.

"A newly released document obtained via a Freedom of Information Act request confirms that the State Department ordered the Department of Homeland Security to spare members of the Muslim Brotherhood traveling to the US in 2012 a TSA pat down or any kind of secondary screening."
Comment: #18
Posted by: SusansMirror
Mon Jan 20, 2014 9:43 AM
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