From Balkinization:

[This essay, on the beginnings of the Jose Padilla case, originally appeared in the Hartford Courant on June 20, 2002. Over the next several days I will be republishing some op-eds and pieces I wrote in the first year after 9/11 on civil liberties issues.

It is worth remembering the extreme claims of power that led to Padilla's original imprisonment. Before the Hamdi decision, the Bush Administration took the view that it could seize anyone, anywhere-- including U.S. citizens-- that it claimed was associated with terrorism and hold that person indefinitely without any rights. Furthermore, it claimed that the President's designation that a person was an enemy of the state was unreviewable by the courts, or at the very least should be upheld if there was any evidence supporting it, including, for example, a self-serving affidavit from an executive branch official.

Five years later, Padilla is still in prison without ever having been convicted of any crime, and, if reports are to believed, has become unhinged from the treatment he received at the hands of his own government.

It has often been said that it can't happen here. But it already has happened. And it is still happening.

Five years after 9/11, we should remember the road we have traveled.]

i'm sure i've stolen that, probably paraphrased, from some person much smarter than myself, but that party's name escapes me at the moment.

(1) An expansive understanding of the First Amendment. First Amendment freedoms are many times more extensive than they were back then.

(2) A much more expansive understanding of the protections to privacy embodied in the Fourth Amendment. After all, the word "privacy" doesn't even appear in the text and yet we now understand it protects a person's reasonable expectations of privacy.

(3) An expansion of substantive due process rights that would have been unimaginable for the early US. The due process clause of the 5th amendment gives us such freedoms as the right to use contraception, the right to an abortion, the right to have sex! with someone not your spouse and many other liberty freedoms.

(4) A modern understanding of the Sixth Amendment has led us to provide lawyers for the indigent, something that wasn't recognized until the 20th century.

Or

Any society that would give up a little liberty to gain a little security will deserve neither and lose both--Benjamin Franklin