The fundamental logical flaw can be found it the proposition that government, in order to carry out its duty to provide security for the People it serves, must be given greater latitude during times of crisis. Basically what government is saying is that it can't carry out these duties, unless it violates well established principles of law. The State tells us it has to break the law in order to keep us secure.
When the United States form of government was created, the Founders had no expectation that those drawn to the exercise of power would be angels. They knew too well that human beings had many human flaws, and the document was designed precisely to take account of this reality. For example, the careful and finely wrought division of powers among the Executive, Legislative and Judicial Branches was put in place to keep those in power in one Branch from overwhelming and controlling the other Branches.
When, subsequent to finishing the Constitution, the Founders realized that certain assumptions that they had felt were obvious, were in fact not obvious to many, they then added what we know of as the Bill of Rights, or the first ten amendments. They realized that not only did the three Branches have to have a finely tuned and balanced division of powers, but that the whole government needed to have restraints put in place to protect the People from excesses of either of the various Branches of government, or from what was understood as a tyranny of the majority. The Founders understood that to the extent our form of Government was a Constitutional Democratic Republic (which by the way is not a Democracy), it would be possible for slight majorities, during moments of passion, to abuse the rights of minorities, and for this additional reason the Bill of Rights was added.
The Civil Rights of Americans are not mere window dressing, something that can be set aside at any excuse, but are rather the most Fundamental Expression of the Limits that the People themselves have placed on Government. The Constitution is a document that says: Government can do this and only this, and only in this way. The People always are to Rule, and a siting President, or an dominant political Party, are not to Rule.
So when the siting Government comes to the People and says we can't do the job of keeping you secure, unless you forego your most fundamental and sacred Rights, this government has confessed its incapacity and failings and now wants to make us give up what it has no right to, in order to shelter it from the consequences of its own weakness, ambitions and errors. Such a government wants to draw to itself ever greater Powers, and this vain desire needs to be seen exactly for the arrogant ignorance it displays, because the true and primary Duty of our Government is to secure us in our Rights, not to diminish them.
Lets look now at what is being called the War on Terrorism, and is being used by the siting Government to justify its desire for a lessening of our Civil Rights.
We should start with an observations I made about the time this War was declared (without a formal declaration of Congress, by the way, for who could declare a War on what are essentially nameless individuals, only loosely connected to an foreign State). Here is the older essay, should the reader what to peruse it: The Problem of Terrorism - in the light of a reconsideration of the nature of foreign policy. In that essay I noted (among much else) some of the following points:
Twice before politicians have declared these kinds of abstract Wars: the War on Poverty, and the War on Drugs. In case nobody has been paying attention, we lost both those Wars. What reason do we have for thinking we can win the so-called War on Terrorism?
The fact is that such a war, given the vague nature of who it would be waged against, is really only another excuse for Government to spend money looking like they are doing something about a problem they really don't demonstrate, in practice, any reasonable chance of solving. Declaring such a War doesn't solve the problem. That declaration is just words, and vain posturing. The real question is what is done. It is never the words of politicians we need to mark, only their deeds.
This does leave us with a problem: What can be done about terrorism? Well, to do something about anything, you need to understand it. Terrorism is not like some recurring weed in our front lawn, to which we can apply some chemical on a regular basis. Terrorism is a complicated modern problem in a complicated modern world, and when our siting government reduces these complex issues to some kind of vague War, they are not providing illumination, only rhetoric - no light, just self-serving words.
The fact is that among causes of death in the world, the acts of terrorists hardly compare to preventable disease, starvation, aids, drugs; and in the United States one is more likely to die in a car accident caused by a drunk driver than to die at the hands of a madman with a bomb in the subway. We also need to recognize that the terrorist is acting in the way they are acting precisely because they want to make us be fearful - to cause terror. At the same time, their attacks against the innocent are far less frequent and devastating than those losses of life that are routinely caused by Nature through hurricane, flood and other natural disasters.
Our political leaders respond in the ways they do, in the face of this insanity in the world (the terrorist is no more sane than a serial killer) because they: a) want to deny that there is any validity to the political and social agendas of terrorists (that is there is no true justification for which the political leader need be responsible); and b) the boogeyman of the terrorist is a convenient scapegoat for the ambitions of politicians, and the wealthy elites which they normally serve.
We can't really take the problem of terrorism out of its wider historical context, and come to any understanding of it at all. For example, the Bush administration came into office bringing with them certain theoreticians of the so-called neo-con variety, who had already written papers in which their 19th Century imperialistic geo-political aspirations could be fulfilled by bringing down the regime in Iraq, and then placing concentrations of American military forces there in order to advance American dominance of the world's oil supplies. 9/11 and terrorism just gave an excuse for an advancement of this long range geo-political goal - one which is entirely in the service of the needs of wealthy elites.
Terrorism is part of a war between the wealthy and the poor, in which the poor and powerless, cornered and unable to act in any rational fashion, are forced into a kind of madness in order to resist the financial aggression by which the world's wealthy elites endeavor to take control everywhere they can, using in the process the good will of the American People as a manipulated and fear driven foil for this elite's own ambitions.
We can't solve the terrorism problem by reducing our Civil Rights, but only by changing the control of wealth over foreign policy so that no longer do the poor and the powerless have to descend into to madness in order to resist the unjust seizure of their homes and lives. It will only be when the American People take common cause with those oppressed peoples, whose pain and suffering breeds the terrorist madness, that anything real can be done. In the meantime, the elites of wealth will use the fear of terrorism to manipulate the American People into believing their only recourse for the intentional failures of American Foreign Policy to bring peace, is to give up Civil Rights.
What is really being asked of the American People is not just a diminishing of our Civil Rights, but our continued political sleep in the face of the real dynamics of the ongoing war between the rich and the poor, of which terrorism is only a symptom.