In the aftermath of the horrendous terrorist attacks of Sept. 11, 2001, President Bush declared a "war on terrorism."
There could be no mistaking the serious dangers that the attack posed for the American public and the elusive nature of the attackers posed very difficult national security issues. At the same time, wars carry substantial risks to constitutional government and to civil rights and liberties. Our history is replete with instances of repression of rights made in the name of national security that in retrospect were clearly unjustified by the circumstances.
President Lincoln suspended the protections of habeas corpus during the Civil War. In World War I, we prosecuted and imprisoned scores of persons (including Eugene Debs, who ran for President as a socialist) for the "crime" of criticizing our war efforts. Immediately after the War, the infamous "Palmer Raids" resulted in the jailing, beating and deportation of thousands of immigrants in retribution for a terrorist attack.
World War II brought one of history's major civil liberties disasters: the internment of 120,000 Japanese-Americans citizens. The Cold War brought on the notorious tactics of the McCarthyites; the Vietnam War resulted in multiple cases of suppression of first amendment freedoms; and even the metaphorical "War on Drugs" has resulted in a restriction of our right to privacy.
In the year after Sept. 11, there has been a re-balancing of national security and equality, liberty and free expression interests. Unfortunately, in some instances, the Government has proceeded on the theory that protection from terrorism is incompatible with civil liberties and open government.
In the wake of the attacks the government quickly arrested more than 1,500 persons on suspected immigration violations. We were assured that these detentions were necessary to identify other terrorists, but not a single person in this group has been connected with last year's attacks.
Moreover, the government has refused to inform us of the number arrested and detained, their identities or alleged violations and what evidence would justify this treatment. This veil of secrecy has been extended to all proceedings concerning these immigration cases. Most have been detained without counsel, in isolation or other severe conditions. And more than a few were guilty of nothing but having ethnic connections to the Middle East.
Not since the Japanese internments have we detained so many with so little justification.
In a recent decision, a federal appeals court found unconstitutional the across-the-board closing of immigration hearings and in strong terms condemned the government's position, stating "The Executive seeks to uproot people's lives outside the public eye. Democracies die behind closed doors."
These detentions, the related conduct of the government in "requesting" that 5,000 Arab-Americans meet with FBI agents to provide any information they had connected to terrorism and the numerous instances of attacks on persons of Arab and Muslim identification also present the troubling question of racial profiling.
Before Sept. 11 the country had reached a broad consensus rejecting racial profiling, not only because of its potentially insidious nature, but as well because it was a largely ineffective law enforcement tool. There is no good reason to think that the use of racial profiles in the war on terrorism will be any fairer or more effective than its discredited use in the war on drugs.
Criminal investigations and prosecutions have been undertaken with significant restrictions on the most basic protections normally provided by our system of laws.
First, in a direct attack on the fundamental right to an attorney, the government has instituted a program of monitoring certain conversations between defendants charged with terrorist acts and their lawyers. This unprecedented policy permits the prosecutor to initiate overhearings without a court order and can only result in the inhibition of the free and candid discussions necessary to ensure effective assistance of counsel.
Second, in another unprecedented move, the government claims the power to indefinitely detain two American citizens without trial or other proceedings on grounds that they are "enemy combatants." Even Kafka's Josef K. was provided counsel in such circumstances, but the government has denied these citizens any access to a lawyer.
Third, the Bush Administration plans to use military tribunals to try terrorists under procedures that lack the most fundamental safeguards against arbitrariness and unfairness.
It was chilling to hear Attorney General John Ashcroft assert that those who challenged the law enforcement responses to Sept. 11 were giving "aid and comfort to the enemy." This message is destructive to our basic values as a nation and, as history has taught, when such measures chill debate, they erode democracy.
"Terrorism" is a powerful silencer. Faced with the unknown dangers of terrorism and the government's assurances that it knows best, many will be unwilling to ask the hard questions. In this atmosphere, what we need is more discussion and more debate.
Within weeks of the attacks Congress passed the USA Patriot Act, which gave the government broad new powers to investigate suspected terrorists and organizations and to conduct far more extensive surveillance than before. This complicated bill was so quickly enacted that most members of Congress never read its provisions before voting, and most attempts to raise questions concerning the need for these new powers were brushed aside as unpatriotic or worse.
The Act permits extensive executive electronic surveillance (with virtually no judicial oversight) and "sneak and peek" searches (where agents forcibly enter one's home or business, conduct a search but never notify the resident of the search).
The Act defines as "terrorist activity" a wide range of violent protest activity that could easily include globalization, environmental and abortion protests.
The Department of Justice has also gutted regulations adopted in the wake of Watergate and disclosure of illegal governmental spying and other intrusions on political dissidents. As with certain key provisions of the USA Patriot Act, these changes were made absent any evidence that extending surveillance of political activity would have prevented Sept. 11 or makes us any more secure from future attacks. Indeed, one year later, it is evident that Sept. 11 occurred not because of a lack of federal police power, but the failure of intelligence agencies to understand and act upon the intelligence it had gathered.
Liberty, equality and political freedom are essential to our democracy and way of life. No doubt, there will be necessary restrictions in time of war and where those restrictions are justified few will complain. The steps we have taken at airports that inconvenience almost everyone are good examples of necessary security and restrictions that for the most part are applied equally.
Unexplained detentions and secret hearings for immigrants, denial of counsel and other rights to suspected terrorists, racial profiling and surveillance measures that are not necessary to combat terrorism stand on a different basis. As Chief Justice John Marshall stated, "History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."
David Rudovsky is a senior fellow at the Law School and a civil rights lawyer.
