Is the Gov't Taking Away Your Liberties?

June 22 -- In 1919, Supreme Court Justice Oliver Wendell Holmes said even Americans surrender certain liberties in wartime, and wartime speech critical of the government could be prosecuted if it posed "a clear and present danger."

The fight against terrorism is different. Congress has not declared a war. The enemy is not one country or another. It may never end. And like the wars on drugs and crime, much of this one is rhetorical and political.

But when it comes to the tug of war between security and civil rights, polls show most Americans are squarely on the side of security, and the administration has seized the language and the law of wartime to justify broad new police powers.

"The Constitution vests the president with the extraordinary and sole authority as commander in chief to lead our nation in times of war," Attorney General John Ashcroft has said.

It's an authority to act at times unchecked by courts or Congress, President Bush believes, so that "foreign terrorists and agents must never again be allowed to use our freedoms against us."

But critics say the Bush administration is pushing beyond the limits of the Constitution.

"We are not even living in a world where we have reason to believe that all of those invasions of the privacies of all kinds of innocent citizens will somehow add up to greater security," says Laurence Tribe, a professor at Harvard Law School.

"To use that as an excuse to go to the very edge of constitutional privacy, and sometimes beyond the edge, seems to me deeply unwise and not consistent with what this country is all about."

In recent months, the attorney general has given the FBI more latitude to spy, ordered fingerprinting of certain immigrants, and locked up Americans in military prison without benefit of legal counsel.

Those declarations have been made with assurances that civil rights will be safeguarded. But they have been announced one at a time, so there's been little chance to consider their implications as a whole.

Nation at War

Though Bush has said, "We're at war, a war we're going to win," there has been no formal U.S. declaration of war since 1941. But the very idea that the nation is at war, as the president so often insists, and that the nation faces "a clear and present danger," makes all the difference in how the debate is framed.

"What we have is the difference between peacetime and wartime," says Douglas Kmiec, dean of the Catholic University Law School. "In peacetime, you can have the luxury of not having the FBI exercise the full extent of its authority, and not have its eyes and ears open in every respect. But in wartime, which this is, I think the circumstances have changed."

Less than a week after the Sept. 11 attacks, Congress authorized the president to defeat those responsible and prevent further terrorism. Tribe argues that authorization, which passed with only a solitary objection in the House, does not give the attorney general carte blanche to expand the FBI's power.

But a majority of the American public sees the argument in terms of trade-offs they are willing to accept. In a recent ABCNEWS poll, 64 percent say they support expanding FBI powers. Sixty-two percent also believe those expanded powers will intrude on privacy.

The question may be, whose liberties is the public willing to sacrifice?

"It was popular for FDR to intern the Japanese," says Frank Sharry, head of the National Immigration Forum, an organization that advocates on behalf of immigrants. "But was it right and was it consistent with who we are as a nation?