-Caveat Lector-
From
http://www5.law.com/lawcom/displayid.cfm?statename=DC&docnum=102784&ta
ble=news&flag=full
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January 4, 2002
Points of View
Do We Fear Freedom?
Our rights are not abstract
By Robert Corn-Revere
Legal Times
The war against terrorism is a war to preserve freedom, we are told.
The president explained that the terrorists "hate us for our freedoms
-- our freedom of religion, our freedom of speech, our freedom to
vote and assemble and disagree with each other."
But even as he spoke, the Federal Bureau of Investigation was
rounding up an undisclosed number of people for indeterminate periods
of detention, and the attorney general has refused to release any
substantive information on the practices. In defending these and
other actions before the Senate Judiciary Committee on Dec. 6,
Attorney General John Ashcroft claimed that those who ask whether we
are sacrificing too much freedom "only aid terrorists, for they erode
our national unity and diminish our resolve."
If irony is not dead, it surely is on life support.
In a two-week period in October, the Justice Department announced a policy authorizing
the interception of attorney-client conversations with detainees, a program of
profiling and interviewing thousands of Arab men, and t
he creation of secret military tribunals to try immigrants and other foreigners
suspected of terrorism.
More significant than these executive actions was Congress' passage of the
anti-terrorism bill -- the USA Patriot Act -- signed by President George W. Bush on
Oct. 26. While some parts of the act provided needed adjustmen
ts to the law, its far-reaching provisions affect the rights of all citizens, and not
just terrorism suspects. For example, the act minimizes judicial supervision of
telephone and Internet surveillance, expands the govern
ment's ability to conduct secret searches, and gives the attorney general and the
secretary of state the power to designate domestic groups as "terrorist
organizations." The law also gives the FBI broad access to sensitiv
e medical, financial, mental health, and educational records about individuals without
having to show evidence of a crime and without a court order.
It could have been worse, and may yet be so. An initial draft of the anti- terrorism
bill would have suspended the right of habeas corpus for all terrorist suspects.
Looking forward, Ashcroft reportedly is considering a p
lan to enable the FBI to spy on domestic religious and political organizations if they
are suspected of having ties to terrorists. Various proponents have called for the
creation of a national ID card, and there has even
been talk of permitting torture.
Dangerous Precedent
For some, such as Rep. John Conyers Jr. (D-Mich.) and columnist William Safire, the
response to Sept. 11 recalls episodes in U.S. history -- Lincoln's suspension of
habeas corpus, the trampling of free speech during World
War I, the internment of Japanese-Americans during World War II, anti- communist
witch-hunts of the McCarthy period, J. Edgar Hoover's obsession with dissident groups
-- in which the rule of constitutional law broke down
.
Others see past examples of extreme actions as supporting precedent that allows
aggressive action by the government even if it entails a loss of civil liberties. One
such person is respected jurist Richard Posner. The 7th
Circuit judge wrote in the December issue of The Atlantic Monthly that civil
liberties "should be curtailed, to the extent that the benefits in greater security
outweigh the costs in reduced liberty." All that can reason
ably be asked of Congress and the courts, he argued, "is that they weigh the costs as
carefully as the benefits."
Yet it is not at all clear that the benefits have been carefully assessed. Eight
former high-ranking FBI officials, including former Director William Webster, told The
Washington Post in November that the newly adopted ta
ctics, such as rounding up large numbers of detainees, are both ineffective and
counterproductive. Noting that the bureau prevented 131 terrorist attacks between 1981
and 2000, Webster said, "We did it without all the sug
gestions that we are going to jump all over the people's private lives, if that is
what the current attorney general wants to do. I don't think we need to go that
direction."
Some (and not just the cynics) have suggested that part of the demand for new
anti-terrorism authority comes more from the belief that the time is ripe to win
concessions than from a conviction that such measures will sto
p terrorism. A senior U.S. official quoted in the Post noted that "a lot of this is
not being driven by problems that prosecutors or investigators are having. It is just
a good time to get everything. It is totally politi
cally and public- perception-driven."
And all of the polling data appear to support this political
calculus. A recent ABC News/Washington Post survey found that 86
percent of the respondents support the post-Sept. 11 mass detentions,
79 percent support interviewing thousands of Arab men, 73 percent
approve of wiretapping attorney-client conversations of terror
suspects, and 59 percent favor the use of military tribunals.
One explanation for such results is that constitutional rights are
for most people an abstract concept, while collapsing buildings and
death are not. If people believe they can prevent a real horror by
trading away a mere abstraction, the choice seems simple. It is
easier still to the extent that people believe they would not have to
sacrifice their own rights, but only those of "swarthy males," as
columnist Ann Coulter so memorably (and repugnantly) put it.
When the president declared that "freedom is at war with fear" in his
Sept. 20 address to a joint session of Congress, he may have had it
backward. That is, on the home front, it appears that fear may be
winning.
Robert Corn-Revere is a partner at D.C.'s Hogan & Hartson.
Date Received: December 26, 2001
End<{{{
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A merely fallen enemy may rise again, but the reconciled
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