Secrecy & Leaks

"For the Rest of Time" -- Really?

By Paul Rosenzweig
Wednesday, October 23, 2013, 11:01 AM

How long will the enhanced security state in America last?  Apparently, some think it will be "for the rest of time."  That has to be wrong.

As readers of this blog know, I live on Capitol Hill and walk by the Supreme Court almost every day.  The Court building has been under renovation for what seems like forever, but the project is nearing completion.  One recent milestone was the removal of scaffolding that had covered the front colonnade for the last 2-3 years.  The restoration is quite good.

At the top of the colonnade are the ceremonial front doors of the Court.  Those doors have been closed since May 2010, for security reasons.  The decision to close the doors was pretty controversial.  So much so that Justice Breyer (joined by Justice Ginsburg) issued a statement recording his disagreement with the decision, even though he understood its security basis.  Justice Breyer concluded his statement on a hopeful note:

I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.

And so it would have been especially troubling to Justice Breyer if he had been privy to my conversation outside the Court yesterday.   Stopping to admire the newly refurbished colonnade, I asked one of the Supreme Court police if that meant the front doors might soon reopen.  His reply was that they were closed and that they would remain that way "for the rest of time."

Granted, this was just one police officer outside the court.  But he has that sense of security from somewhere.  I suspect that the Supreme Court police do not have a contingency plan for reopening the front door.  Not now, and not ever.

For those, like me, who think that many of our security changes have been both essential and fairly implemented, this trend toward a permanent state of conflict is especially troubling.  We might disagree with our colleagues about how much the threat has diminished as of today and about when precisely the threat will have been dissipated sufficiently to think about ending some of the security measures in place.  But those who favor enhanced security measures bear a special responsibility, I think, to guard against the instinct that they are inevitably indefinite.

Our strategy cannot be that the conflict will last forever.  As DHS Secretarial nominee, Jeh Johnson, has spoken of, there is a real need to think about an end state for this conflict.  As a matter of  social necessity, we cannot and should not accept the inevitability of an endless conflict.  "For the rest of time" is just the wrong answer.