ABSTRACT
War is familiar enough, even to liberal democracies, that most of its costs for liberty are familiar too. To the extent that wars are financed through taxation or borrowing, the cost is distributed among all the goods that money can buy. Dissent from government policy may obstruct the war effort, and may even be designed to do so; so suppression of dissent becomes more palatable during war. There is a fundamental difference between governmental measures to combat terrorism, especially the kind of terrorism the United States confronts, and ordinary criminal law. Trials of terrorists, including members of terrorist organizations who are not actually guilty of the crimes charged, are magnets for terrorism. Structural protections of civil liberty are therefore of fundamental importance, and events have brought to the fore the most basic of those protections: prosecution of crime before an independent judiciary.
