"When you're in this type of conflict, when you're at war, civil liberties are treated differently." -- Senate Minority Leader Trent Lott (R-Miss)
The ACLU's phone is ringing off the hook with questions about what the recent disasters in Washington and New York will mean for a free society. People stare and point at the military "humvies" with their black-bereted guards parked on D.C. street corners. The Arab-American Anti-Defamation Committee protests an emerging "pattern of collective blame and scapegoating against Arab-Americans and Muslims."
While no one protests the current uptick in military and police presence in the wake of Tuesday's tragedy, liberal-minded folk are wondering if the current calamity will spark yet another: a systematic breakdown of respect for personal liberties in the name of personal and national security. Will security hawks use the recent events to justify a "wish list" of radical and invasive measures?
The U.S. Constitution makes no provision for its own suspension during emergencies, unlike those of many other nations, including Canada. While citizens of other countries can expect to sacrifice certain civil liberties in wartime or other extreme situations, Americans' rights are supposed to remain intact even in the most dire circumstances. That is, at least, from a legal standpoint. Practically speaking, of course, we can all name situations where the government trod upon or just downright ignored human rights in the name of national security.
Where was the writ of habeas corpus, for example, during the Palmer raids of 1919, when thousands of immigrants were rounded up and detained for months following an explosion in attorney general Palmer's home? (About five hundred were eventually deported, and the others were released without apology). Or when an estimated 110,000 Japanese immigrants found themselves in internment camps in 1942 for the crime of having Japanese ancestry? Or during the McCarthy era, when laws passed targeting persons for their political affiliations, regardless of their actual activities.
The McCarthy era provision authorizing the deportation of immigrants for being members of the Communist Party was finally wiped from the books in 1991, but the substance of it was reborn in the Congressional Anti-terrorism and Effective Death Penalty Act of 1996. Designed as a response to the Oklahoma City bombing, the law radically restricts a prisoner's ability to challenge the constitutionality of his or her conviction, allows the deportation of immigrants on the basis of "secret evidence", and permits the prosecution of citizens for supporting any organization that the State Department dubs terrorist.
In none of these cases did governmental action bear much relevance to the crime committed. No connection was ever established between the Palmer explosion and any of the immigrants detained. The Japanese immigrants and Japanese Americans not only were not traitors, but the government tacitly acknowledged this by conscripting the military-aged men to fight for the country that had illegally imprisoned them.
Georgetown University Law Center professor David Cole has successfully defended 13 immigrants, mostly after 1996, where the U.S. has tried to use secret evidence. (The Immigration and Naturalization Service (INS) is currently authorized to withhold evidence, even from defense counsel, that it deems a threat to national security. Suspects can therefore be tried and convicted on evidence they have never seen and cannot defend themselves against). He fears that the events of September 11 will spark yet more restrictions on civil liberties, especially for immigrants and minority groups.
"Historically we have overreacted in times of fear," Cole says. "Everybody feels they have to do something, which often turns out to be symbolic as much as anything."
Cole isn't sure what sorts of restrictions on political freedoms to watch out for in the coming months, in part because the responses after tragedies like the one in New York and Washington so rarely reflect rational forethought. The FBI will probably seek broader powers, perhaps in the form of more intrusive surveillance, especially of the Internet. Other likely changes include a broadened ability to deport "suspicious" aliens, and racial profiling at airports and other locations. We could also see an expansion of military enforcement of civil law, allowable now only in cases of biological or chemical attacks. And the recent bi-partisan sentiment in favor of eliminating secret evidence cases will probably go up in smoke.
Other experts, like Harvard law professor Frederick Schauer, expect the effect on political rights to assume a subtler, but perhaps more pervasive form. If we look at recent history, Schauer says, what we should be concerned about is the suspension of so-called informal civil liberties. Muslims, Arabs, and those of Middle East descent may find themselves victims of social marginalization, racial slurs, rhetoric, and a general failure to be heard or respected in common society.
Many of the anti-immigrant, anti-Arab actions will prove counterproductive, Cole says, as the Arab community feels itself increasingly singled out and persecuted. Many Arab-Americans are already extremely mistrustful of the FBI and see no advantage in cooperating. Cole likens the situation to law enforcement in the inner cities, where African- Americans already feel themselves under suspicion and vulnerable, which in turn breeds distrust of officers and makes policing more difficult.
A recent ABC/Post survey found two out of three people expressing willingness to surrender "some of the liberties we have in this country to crack down on terrorism." Cole attributes this not only to a heightened concern for safety, but to the fact that the majority are not generally affectedthat is, it's not their relatives being detained and questioned. We should all ask ourselves, he says, how much of our freedom would we personally would be willing to give up for a gain in security.
What's crucial, says Schauer, are statements from those in authority encouraging people to distinguish between what people actually do and their ethnic identity. "These authority figures are where people get their signals," he says.