Saturday, September 20, 2003

By William Fisher

Attorney General John Ashcroft’s current ‘road show’ is a major effort by the Bush Administration to head off growing Congressional and other criticism of the USA Patriot Act and as a predicate to the introduction of yet another piece of anti-terrorism legislation, the Victory Act. The Patriot Act gives the Government broad powers to listen to and record our phone conversations, make videos of our lives, search our homes and offices and computers without warrants and let us know about it later, and expel aliens who may “threaten the national security of the United States or the safety of the community or any person.” Suspected al Queda terrorists are to be summarily tried by military tribunals.

Today, sections of the Act, hurriedly passed -- without hearings and with little debate -- in the immediate post-9/11 period, are being challenged by numerous individuals and groups, from the liberal left to the conservative right, including many members of Congress who voted for it. Their concern is that, in attempting to acquire the tools to catch and prosecute the bad guys, the Act gives our government too much power to infringe on the Constitutional rights of all Americans. And it does so largely without the checks and balances that are so central to our system of government.

Ira Meistrich, writing recently in the publication, Military History Quarterly, makes a compelling case that the Patriot Act is far from the first time in American history that concern for national security has resulted in excessive constraints on civil liberties. These have ranged from limiting the free speech of soldiers in the Continental Army during the American Revolution, to passing the draconian Alien and Sedition Laws in 1798 when France and the US were on the brink of war, to Lincoln’s suspension of habeas corpus during the Civil War, to Woodrow Wilson’s series of anti-dissent laws before and during World War I, to Attorney General Mitchell Palmer’s ‘Red Raids’ following the war, to Roosevelt’s internment of 120,000 Japanese-Americans during World War II, to the infamous antics of the House Un-American Activities Committee and Joe McCarthy’s Cold War witch hunts.

But Meistrich asserts that our Constitution has always shown the resilience to bounce back. He sums up his argument as follows: “The Romans had a phrase for it: ‘inter arma silent leges -- in times of war, the laws are silent,’ as Thomas Jefferson wrote…. But if the laws have been silent inter arma, so far they have always come back in full strength when the crisis has passed.”

In my view – and those of a growing chorus questioners -- it is not nearly good enough to assert that our Constitution is strong enough to bounce back from any ‘temporary’ diminution of our rights. For one thing, these measures are unlikely to be ‘temporary’ – the war on terror will go on into the very distant future. Secondly, the civil rights they threaten are the very cornerstones of our democracy – the attributes we like to think distinguish the US from most of the other nations of the world. The US is supposed to be the ‘gold standard’ of civil liberties and an example to the rest of the world. Yet, many critics of the Patriot Act complain that we are adopting a double standard: urging foreign leaders to show more respect for civil rights while we curtail them at home. Finally, we are right to be concerned because over our history each attack on our civil liberties has caused pain and suffering to many innocent Americans and, perhaps worse, provided a legal, political, atmospheric or cultural precedent for the next attack.

To be sure, throughout our history we have experienced some very real threats from and considerable damage to the US and its citizens. These have always been the rationales used to justify a broad-brush approach to keeping us safe. The real threats of terrorism notwithstanding, the motivations of some of the most heinous abusers of the Constitution are highly suspect -- White House ambitions (Mitchell Palmer), partisan politics (Federalists versus Republicans), power and influence (J. Edgar Hoover), publicity, notoriety and reelection (Joe McCarthy, Martin Dies, Richard Nixon). But the bottom line has always been, however well intentioned, a broad-brush approach leading to widespread and seemingly indiscriminate attacks on our civil liberties.

Dr. Meistrich attempts to inject a calming note into this litany of abuses. He writes: “Time and again, the Constitution has been tested by crisis, and time and again it has proven its resilience. Legitimate concern about the impact 9/11 has had or will have on our basic liberties is appropriate and important, but it is equally important to view these events and actions through the informing lens of history. The record is not spotless, but it is impressive.”

He is right. Many of the most outrageous infringements on our civil liberties have been corrected, or at least acknowledged, over time. But the lens of history is by definition a long-range lens, while the suffering of thousands of innocent people caught up in too-often baseless attacks on their civil liberties over the past two centuries was and is short-term and immediate.

We ought to be able to do better. We ought to be able to figure out how to do in civil society what we now do on the battlefield with ‘surgical strikes’ -- how to catch the bad guys without ruining the lives of ordinary, law-abiding Americans. Today, there is a growing body of evidence that we may be at the beginning of a process to do just that – to save the best of the Patriot Act while avoiding the risks of repeating the mistakes of our past.
For example, Republican Rep. C.L. Otter (R-ID), from the conservative heartland, has sponsored an amendment to a key spending bill prohibiting the implementation of a section of the law facilitating federal agents’ use of secret “sneak and peek” searches, which permit a delay in notification that a search was conducted. The measure is supported by some 300-plus Congresspeople, including more than a hundred Republicans. In the Senate, Alaska Republican Sen. Lisa Murkowski and Oregon Democrat Ron Wyden have introduced a bill to narrow other sections of the law, and Sen. Russell Feingold (D-WI) sponsored a bill to roll back Section 215 of the Patriot Act, which among other things allows the FBI to access Americans’ library records without showing probable cause.
In addition, the American Civil Liberties Union has filed a suit challenging the constitutionality of Patriot Act, particularly Section 215. The ACLU and six Muslim groups argue that the law gives federal agents virtually unchecked authority to spy on Americans. Their suit seeks to have this major section of the law declared unconstitutional on grounds that it violates privacy, due process and free speech rights of Americans.
Says Laura W. Murphy, Director of the ACLU’s Washington Legislative Office: “…There is a growing sense among regular Americans of all political stripes – from the most right-wing to the most left – that the Patriot Act went too far, too fast. Instead of merely taking rational, judicious steps to update and improve our federal police and intelligence resources, it overreaches by eroding basic checks and balances against White House and cabinet-agency power, at the expense of the people’s representatives in Congress and the bulwark of our rights, the courts.”
Moreover, opposition has come not only from ‘the usual suspects’ – the Left – but also from groups such as the American Conservative Union – concerned about the impact of the Patriot Act on their privacy. Says the Union’s chairman, David Keene:
“These infringements on the individual freedoms of American citizens are not part of some plot or conspiracy to deprive us of our civil liberties. The President, the Attorney General and those interested in maximizing individual liberty need to work together to guarantee that we can defend ourselves without altering the nature of the greatest society on earth. The USA Patriot Act was passed in haste and included ideas previously shelved by the Congress, like expanded civil forfeiture and roving wiretaps: ideas that law enforcement wanted, but could never get. When creating sound anti-terrorism legislation, the line should not be drawn at 'what is helpful for law enforcement,' but at what is needed to protect us while preserving the proper balance between preserving civil liberties and our nation's national security needs.”
David Cole of Georgetown University, author of the new book, “Enemy Aliens”, noted in a recent PBS interview that the justifiable fear created by 9/11 not only made quick passage of the Patriot Act quicker; it also created an environment in which the Justice Department has been able to more freely exercise its remedy of choice -- immigration violations -- to round up and detain ‘terror suspects’ without having to provide them with any of the basic protections afforded by the criminal justice system. Because immigration violations are not criminal acts, their alleged perpetrators have no right, for example, to legal representation, and can be detained indefinitely or deported without hearing or notice.
Says Cole: “There have actually been…over 5,000 people detained since September 11th in anti-terrorism initiatives undertaken by the Justice Department. And of those 5,000, only three were charged with any crime related to terrorism. And of those three, only one was convicted, and not actually of engaging in terrorist activity or even planning terrorist activity, but of conspiring to support some unidentified terrorist acts in the unidentified future. So you get 5,000 people locked up on pretexts who had nothing to do with terrorism.”
Cole continues: “I think we absolutely need to use those means that will root out the potential terrorists. But locking up 5,000 innocent people doesn't root out potential terrorists. Making all Arab and Muslim men come in and register simply because they're from Arab or Muslim countries doesn't make us safer. And what these initiatives do is I think play into the terrorist hands. Because what the terrorists want most of all when they attack a democracy, a country like ours, is for us to overreact. For us to violate our own principles. For us to be seen as acting unjustly. Because that then creates the fodder for further recruitment drives. “
The message these voices are sending us is: those who fail to learn the lessons of history are doomed to relive them. That’s a risk we ought to be innovative enough to avoid.