The Constitution Project’s Liberty and Security Initiative, launched soon after the terrorist attacks of September 11, recently released a report detailing the effects that policies adopted in response to the terrorist threat have on the First Amendment. The report, and its various signatories, clearly recognize and support the federal government’s objective to protect Americans from terrorist threats, attacks, and activities. However, the Initiative members also acknowledge the vital importance of the fundamental rights and values protected by the First Amendment. Unfortunately, the report finds that those values have been infringed upon by several anti-terrorist measures. The report first establishes the backdrop of relevant statutes and regulations before discussing the ways in which anti-terrorist measures should respect First Amendment values of openness, robust political debate, and freedom of association. The report notes four areas where anti-terrorist policies have not respected these values:

• Excessive secrecy of the Bush administration and federal agencies;
• The government’s policies to preclude disclosure of information about detainees and immigration hearings;
• The weakening of Freedom of Information Act (FOIA);
• The changes in the FBI surveillance guidelines.

The Initiative proposes several specific recommendations for the executive and legislative branches of the federal government to achieve a better balance between protecting national security and preserving First Amendment guarantees. Among the recommendations:

• There should be no blanket closure of deportation hearings;
• The government should release the names of all persons it detains except under compelling circumstances as determined by a court;
• The federal government should adopt more extensive guidelines and tighter controls for investigations implicating First Amendment values;
• The federal government should consult with the communities affected by terrorist-related investigations;
• The federal government should not weaken FOIA.

The First Amendment is vital to hold our government accountable. Openness in governmental decisions and activities must exist or else citizens will not know what their leaders are doing, and they will have no way to judge them or to initiate the robust policy debates so necessary to a free society. The report also takes the position that openness is an important weapon against terrorism, dispelling misunderstandings about American government, policies, and values. It also reminds the world that the United States tolerates criticism, which in other countries might be punishable.