Civil Liberties

Guarding the Home Front

Will civil liberties be a casualty in the War on Terrorism?

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If the first casualty of war is the truth, the second casualty is often the liberty of law-abiding citizens. In the wake of the horrific September 11 attacks on the World Trade Center and the Pentagon, the United States declared total war on terrorism. President George W. Bush has laid out some of the sacrifices the government will demand of its citizens: "You will be asked for your patience, for the conflict will not be short. You will be asked for your resolve, for the conflict will not be easy. You will be asked for your strength, because the course to victory may be long." He has also insisted that "we must make sure that the law enforcement men and women have got the tools necessary, within the Constitution, to defeat the enemy."

Despite the nod to constitutional restraints on police power, some of the tools Bush and other politicians have proposed—national I.D. cards, roving wiretaps, indefinite detainment of suspects, lower burdens of proof, intensified surveillance, and much more—raise serious questions about the government's commitment to civil liberties. In late September, reason asked a panel of experts to discuss which civil liberties they thought were most at risk in what has been called America's first 21st century war.

Enough Already

Jerry Berman

My first fear is that the government will expand intelligence investigations and break down the wall that Congress established after Watergate to prohibit the kind of surveillance that was conducted against domestic dissent during the civil rights and Vietnam War eras.

Under the Foreign Intelligence Surveillance Act, the intelligence community already has vast authority to conduct intelligence and criminal investigations of terrorist activities. Our intelligence community can already conduct secret electronic surveillance, engage in secret searches, and plant bugs against terrorists. The act covers foreign powers and terrorist enterprises. It applies overseas and in the United States and allows wiretapping, bugs, and surveillance directed at Americans, as well as foreigners, who may be engaged in terrorist activities on behalf of enterprises like bin Laden's network. The standard for this surveillance is less restrictive than what we require for domestic criminal surveillance.

The attorney general wants to change the primary purpose of those taps from intelligence, which is why they get a lower standard, to any purpose, meaning they could be used for criminal investigations. This would vastly expand federal authority to use surveillance without probable cause.

Federal agents still need to make the case that the expanded powers for which they are asking are necessary. To date, there has been no evidence, either from classified briefings or any public source, that restrictions in the law hindered their efforts to know about bin Laden and his associates. It wasn't a restriction breakdown. It was an analysis breakdown.

Jerry Berman is the executive director of the Center for Democracy and Technology, a high-tech civil liberties and Internet policy organization. He has worked on all the intelligence guidelines passed since Watergate.

Government's Loaded Weapon

Clint Bolick

Detention without trial. Racial profiling. Electronic surveillance. National identification cards. The growing list of proposals in the wake of the September 11 attacks makes it tough to single one out as the most threatening to our civil liberties. Much depends on the contours of the power, how it's exercised, and whether it has an end point.

More worrisome is the notion that our civil liberties are subject to cancellation in times of crisis. Our Constitution seeks to protect rights the Framers deemed inalienable. It faces its gravest tests in times of crisis.

We have traveled this road often before, and we should draw upon the lessons of history. In his dissenting opinion in Korematsu v. United States, which upheld Japanese internment camps, U.S. Supreme Court Justice Robert H. Jackson wrote that "a judicial construction…that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself….[O]nce a judicial opinion rationalizes the Constitution to show that [it] sanctions such an order…the Court for all time has validated the principle of racial discrimination….The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." What other principles are we prepared to sacrifice?

With determination, we will get past this crisis. The question is: Will we do so with our constitutional system—the cornerstone of our free society—fully intact? If not, the terrorists will have extracted even more grievous costs than those already apparent.

Clint Bolick is vice president and director of state chapter development for the Institute for Justice, a Washington, D.C.?based public interest law firm.

Lessons Never Taught

Jim Bovard

The blind glorification of government currently prevailing puts almost all liberties at grave risk. Most of the media and most of the politicians are stampeding behind the notion that the greatest danger is any limit on federal power. The Justice Department wish list of remedies invokes the danger of terrorism to seek sweeping new powers to be used against all classes of alleged criminals.

The determination of some members of the Bush administration to use the terrorist attacks to wage wars against a laundry list of "rogue nations" could mean that aggressive military action continues indefinitely—along with the pretext to suppress Americans' freedom of speech and movement. And if there is another successful terrorist attack that kills many Americans, the pressure for severe crackdowns will probably be irresistible—regardless of how badly government agencies screwed up in failing to prevent the attack. At least for the time being, people have lost any interest in government's batting average—either for actually protecting citizens or for abusing power.

The best hope for the survival and defense of liberty is that enough Americans will recall the history lessons that public schools never teach.

Jim Bovard is the author, most recently, of Feeling Your Pain: The Explosion & Abuse of Government Power in the Clinton-Gore Years (St. Martin's Press).

Beware of Tom Ridge

Alexander Cockburn

For a foretaste of the sort of assault on civil liberties we might expect, we need go no further than the actions last year of George W. Bush's nominee to run the newly minted Office of Homeland Security (OHS), Gov. Tom Ridge of Pennsylvania.

Last July, in preparation for anti?World Trade Organization demonstrations scheduled at the same time as the Republican National Convention, Philadelphia saw coordinated law enforcement involving the Federal Bureau of Investigation and local and state police, with covert surveillance, infiltration, and disruption of legitimate groups, snooping on e-mail, and phone taps. Protest leaders were arrested early on, under absurd pretexts and, in the case of John Sellers (of the Ruckus Society) and Kate Sorensen (ACT-UP), held on $1,000,000 bail. Jailed protesters were brutally handled, denied access to medical care and attorneys, and thrown into cells with dangerous inmates.

When all was over, the courts threw out 95 percent of the charges brought against protesters by the Philadelphia police. Ridge presided over an utterly disgraceful and violent denial of freedom of assembly, free speech, and due process.

The only comfort we can expect is that the FBI, the Central Intelligence Agency, the Federal Emergency Management Agency, the Pentagon, and the Coast Guard will see the OHS as a bureaucratic threat to their turf and move swiftly to neutralize it. I have no doubt that these seasoned bureaucratic fighters will soon be leaking information to discredit Ridge and the OHS.

Alexander Cockburn is a syndicated columnist and co-editor of the radical newsletter CounterPunch (www.counterpunch.org).

The End of Privacy

Jim Harper

Goaded by leftist privacy advocates, Congress has been toying with the idea of regulating the private sector in the name of privacy. As we now see, governments themselves are the most powerful, constantly lurking threats. The War on Terrorism will strike hard at the Fourth Amendment right to be free from unreasonable searches and seizures.

In the shelter of this already-too-weak freedom, Americans protect what remains of their privacy from government. Because no one yet knows what national security lapses allowed the heinous September 11 attacks to occur, laws expanding warrantless wiretapping amount to a ritual wartime shedding of civil liberties. The charge of opportunism sticks to some proposals, which came forward while fires still burned at the Pentagon and World Trade Center. They involve powers law enforcement could not win from a rational, deliberative Congress.

The laws balancing surveillance and privacy could be updated—rationally and in light of new technology, our tradition of privacy from government, and the Fourth Amendment. But when the last terrorist has died or renounced violence, the privacy protections taken hastily from American citizens in the coming days are not likely to be restored. This truly just war against terrorism may take a generation. Mopping up the carnage to privacy may take many decades longer than that.

Jim Harper is editor of Privacilla.org, a Web-based privacy-policy think tank.

Losing the Fourth and First

Nat Hentoff

We may lose the need for a magistrate to give police a warrant for any kind of search. Also, federal law enforcement officials want to allow an investigator to search a suspect's home without immediately notifying the target of the search. In J. Edgar Hoover's day, that was called a "black bag job." It is totally unconstitutional, and it should be criminally illegal.

Then there's the First Amendment. In the Gulf War, the government managed to tie the hands of the press totally. In other words, practically no information came out except from the government. By contrast, in the much more dangerous Vietnam War, there was a great deal of free reporting and as a result of that, people began to understand what was going on and there were political changes. As Justice Hugo Black said in the Pentagon Papers case, it's especially when you're in a war situation and people are going to die that the press has to tell people what's going on.

And that's just a few freedoms under attack. Most Americans have only a rudimentary understanding of their own rights, because those rights are taught so badly in the schools. Therefore, they don't care much what other people's rights are. Because of the terror of the attacks, about 70 percent of the public is willing to give away their rights in the interests of security. All in all, it's a very bleak picture.

Nat Hentoff is a syndicated columnist and author of numerous books on civil liberties.

Every Step We Take

Robert Higgs

The American people may well be witnessing the death of their right to privacy, not with their usual whimper but with their ill-considered, too-hasty approval after the New York and Pentagon bangs.

The government has declared war on "terrorism," but because terrorists assume many guises and operate in many places, the only way to ensure that no terrorist escapes notice is to watch everyone, everywhere. Lacking the patience and the wit to focus its surveillance on only the most likely suspects, the government will regard all of us as potential terrorists or as their potential providers, unwitting perhaps, of aid and comfort. Our communications by ordinary mail, telephone, fax, and e-mail will be scrutinized or at constant risk of scrutiny; our homes and places of business will be searched or at constant risk of search; our personal contacts, financial affairs, and travel by airliner, train, and ship will be closely monitored and restricted. To borrow the lyrics of a once-popular song: Every step we take, every move we make, they'll be watching us.

Of course, once people have been subjected to such thoroughgoing government surveillance, all relations between the government and the public are transformed. Whether the rulers be revolutionary despots or democratically elected officials, every citizen knows that "they" know all about him and his affairs, and hence no one dares to step out of line. In such a situation, the socio-political system will gravitate ineluctably toward totalitarianism.

Robert Higgs, author of Crisis and Leviathan: Critical Episodes in the Growth of American Government (Oxford University Press), is a senior fellow in political economy at the Independent Institute and editor of the institute's quarterly journal, The Independent Review.

Bye-Bye, Bill of Rights

David Kopel

In the short run, Fourth and Fifth Amendment liberties face the greatest perils. While Attorney General John Ashcroft has performed very well on many fronts, in his relationship with the FBI he is, unfortunately, following in the footsteps of the attorneys general from the Clinton and the first Bush administrations. He's doing nothing to restrain the FBI's ever-escalating demands for the creation of a surveillance state.

Over the longer course of war, almost every part of the Bill of Rights will come under assault. Centralizers will attempt to further undermine the Tenth Amendment. Already, the gun prohibition lobbies are claiming that gun shows must be destroyed in order to fight terrorism. Note, by the way, that the McCain-Lieberman gun show bill before Congress is not just about background checks on some gun show sales. The McCain-Lieberman bill has so many sweeping restrictions, the violation of any one of which is a felony, that it would be legally reckless for anyone to operate any gun show if McCain-Lieberman were law. The issue really isn't background checks, but whether gun shows should continue to exist.

Besides threats to particular liberties, friends of traditional American values—namely freedom, privacy, and justice—should keep their eyes on two transcendent issues during wartime. First, the effort to replace our checks and balances and our system of federalism with unreviewable central executive power. Second, the tendency of people to suppress their own willingness to think freely, and to lash out at those who do not similarly self-suppress. r

David Kopel is research director of the Independence Institute, in Golden, Colorado.

Farewell to Anonymity

Declan McCullagh

So far, politicians are targeting privacy and anonymity. National I.D. cards are being taken far too seriously. Oracle CEO Larry Ellison told a San Francisco TV station: "We need a national ID card with our photograph and thumbprint digitized and embedded in the ID card." Perhaps eyeing a lucrative support contract, Ellison volunteered to provide the software "absolutely free."

The likely result: Cops arresting any American who refuses to show a surveillance-enabled I.D. on demand. (Previously the concept arose, in less dramatic form, when anti-immigration zealots in Congress unsuccessfully tried to encode fingerprints, Social Security numbers, and other personal information into everyone's driver's license.)

That's not the only retread of a bad idea from the 1990s. In a floor speech, Sen. Judd Gregg (R-N.H.) called for a global ban on privacy-protective encryption products that don't have "back doors" that would allow government surveillance. Gregg plans to introduce a bill in October. No word yet on how those crypto-mavens in the U.S. Congress plan to convince Osama bin Laden and company to use FBI-certified spyware.

Another item on the FBI wish list is about to come true: The Senate has already approved a bill—by a 97?0 vote—that lets police conduct some forms of Internet surveillance without a court order.

The outlook isn't entirely bleak. Liberty has found some surprising, if uncertain, champions in the Congress. We should be heartened that members of both major parties are starting to ask for more time to weigh these proposals. The Bush folks had said, generously, that three days would be more than enough. r

Declan McCullagh is the Washington bureau chief of Wired News (wired.com) and a contributor to wartimeliberty.com.

Two Kinds of Rights

Roger Pilon

As the Declaration of Independence says, the main business of government is to secure rights, but legitimate government can't do it by any means. It can't violate rights in the name of securing them.

That frames the issue. Between those boundaries—and given a world of uncertainty—the devil is in the details. Governments too restrained leave rights exposed. By contrast, societies that trade liberty for security, as Ben Franklin noted, end often with neither.

Thus, the government's war against terrorism implicates two kinds of rights—the rights governments are instituted to secure, and those they must respect in the process. At this writing, it appears that the terrorist attacks of September 11 resulted from a massive government failure to protect rights of the first kind. Predictably, friends of government are now saying that an undue regard for rights of the second kind led to that failure. That may be true, but it may also be special pleading. Were agencies prohibited from talking to each other in the name of privacy? Or did they simply fail to coordinate efforts? Those are the kinds of questions that need answering.

At this juncture, therefore, it's difficult to say which civil liberties are most at risk. Certainly, as September 11 demonstrated, the liberties we created government to secure are at risk. But can we better secure them and remain free? Yes, if we act smartly. Above all, whether with surveillance or searches or due process, judicial oversight must be preserved—for citizens and non-citizens. It's the final safeguard for liberty.

Roger Pilon is vice president for legal affairs and director of the Center for Constitutional Studies at the Cato Institute.

Presumed Guilty

Glenn Reynolds

No liberty is in danger so long as we are willing to preserve it. But I think the biggest danger is to the presumption of innocence. Defensive precautions against terrorism involve, unavoidably, a presumption of guilt. That's tolerable at airport security checks, but the trick will be to keep this approach from infecting all of law enforcement—even in areas that have nothing to do with terrorism.

To judge by the proposed legislation before Congress as I write, that infection is already happening at the Justice Department.

Glenn Reynolds is a professor of law at the University of Tennessee, and writes for the Web site InstaPundit.com.

Three-Time Losers

Harvey A. Silverglate

There are three areas in which civil liberties are most vulnerable. One is in the area of domestic surveillance. One change that has a good chance of occurring is the monitoring of individuals on the basis of something other than probable cause. I also expect that there will be an attempt to give the Department of Justice the authority to monitor individuals even without a court order under circumstances that Justice, in its wisdom, deems appropriate. I think the DOJ will take advantage of the current crisis to not only get authority to monitor different kinds of communications modalities, such as the Internet, but also to lower the relatively strict standards that govern wiretapping.

The probable increase in racial and ethnic profiling of tan-skinned people and the maintenance of a different set of standards for them as opposed to "Americans" is also very worrisome. When an unwise rule is applied only to a disfavored or minority group, there is no substantial social pressure to get that bad rule repealed. It's only when that rule is applied to all of us that really horrendous rules get repealed.

I am also concerned about moving into an atmosphere where there will be coercive displays of patriotism required of citizens in order for them to avoid various kinds of discrimination—or even violence and threats of violence. r

Harvey A. Silverglate is co-author of The Shadow University: The Betrayal of Liberty on American College Campuses (Free Press).

Less Freedom, Less Safety

Nadine Strossen

My greatest fear is that too many members of the public will embrace the government's call to give up some freedom in return for greater safety, only to find that they have lost freedom without gaining safety. That is the lesson of every recent actual or metaphorical war.

In the Gulf War, we saw unprecedented restrictions on freedom of the press. Subsequent studies showed that the restrictions were not justified by any actual security concerns, but rather were designed largely to shield our government from criticism. Still, efforts are now under way to impose even greater restrictions on media coverage in the current crisis.

In the wake of the Oklahoma City bombing, our government has been exercising pervasive surveillance over millions of innocent communications, through dragnet systems including record-breaking numbers of wiretaps, the Carnivore program for intercepting all communications that pass through certain Internet service providers, and the Echelon global electronic surveillance system. Nonetheless, the Justice Department continues to seek even more expansive surveillance powers, which would sweep in even more innocent communications, with even less judicial oversight.

In the War on Drugs, many rights-curtailing measures fall disproportionately on members of racial minorities who fit stereotypical "profiles." Likewise, in the stepped-up "War on Terrorism," the most endangered rights will probably be those of ethnic and religious minorities who are targeted not because of individualized suspicion, but only because of stereotypes. The most beleaguered are likely to be Arabic or Islamic individuals who are not American citizens.

Nadine Strossen, a professor at New York Law School, is president of the American Civil Liberties Union.

Nowhere to Hide

Paul M. Weyrich

The Fourth Amendment to the Constitution is the most at risk. The government will challenge our right to be shielded from unreasonable search and seizure by trying to obtain the keys to our encrypted communications. That way, at will and without a warrant, they will be able to read our e-mail and other documents.

Ah, you say, I have nothing to hide, so why do I care? In this era of political correctness where the ordinary practices of today become the crimes of tomorrow, it is dangerous to have that view. Perhaps you may want to trust the government to have access to your innermost views. But what do you suppose will happen when you determine that the government has become too repressive and it must be replaced? What do you suppose will happen to you when governmental officials find out your views before you have had a chance to act upon them?

Paul M. Weyrich is president of the Washington, D.C.-based Free Congress Research and Education Foundation.