Is the Gov't Taking Away Your Liberties?
June 22, 2002 -- 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?
"Yes, we have to redraw the line between liberty and security after 9/11, no question about it," he said. "But we can't redraw the line in such a way that the values we're defending are the values we're compromising. And when we pick on vulnerable minority groups and hearken back to some of the worst chapters of American history, we have to be very careful."
Fingerprinting
Earlier this month, Attorney General Ashcroft announced that visitors from certain countries suspected of harboring terrorists, would be fingerprinted and photographed and required to register at regular intervals.
Bob Ricks, a former senior official in the FBI, sees the fingerprinting as necessary to protect against possible terrorists.
Such fingerprinting would be automatic for visitors from Iran, Iraq, Libya, Sudan and Syria, all nations accused of sponsoring terrorism. But hundreds of thousands of other foreigners may also be targeted on a much broader basis of "elevated national security concern."
That is code for Arabs and Muslims, according to Nihad Awad, the executive director of The Council on American-Islamic Relations.
"It's giving a false sense of security, because so far we have seen that the government has applied laws and measures that are based on religion and race, and this is called profiling," Awad says. "Profiling is never necessary to protect Americans. It's a form of discrimination."
Tribe says it is possible to use more Constitutional methods to bolster U.S. border security, and says "to raise the barrier to selected countries on the basis of guilt by association is really not the American way."
But Kmiec says the new U.S. policy makes some sense.
"The people are coming here with student visas and tourist visas and then just disappearing, not being either tourists or students," Kmiec says. "We don't track them when they're here, and we don't pay much attention to them as they're leaving. … And I think the logical step is to focus on the part of the world that has threatened us most recently."
Public Places
Last month, Ashcroft tossed out old restrictions barring agents from snooping in places of worship, political organizations — any place, for that matter, the public could go.
"For the specific purpose of detecting or preventing terrorist activities, FBI field agents may enter public places and attend events opened to the public, or other citizens, unless they are barred from attending by the Constitution or federal law," Ashcroft said.
The move seems logical to some, especially with critics alleging security lapses before Sept. 11.
"The FBI can't be caught in a whipsaw here," Kmiec says. "I think this is a very logical response to say, `We're now going to look at the whole picture and we're going to look at everything that an American citizen has a right to look at.'"
But critics point out the restraints being lifted were imposed in 1976 after a Senate investigation uncovered FBI abuses going back to World War I.
Under J. Edgar Hoover's infamous FBI counterintelligence program, agents bugged public places including churches and compiled dossiers on all kinds of people including suspected communist sympathizers, American Indian groups, Vietnam protesters and civil rights leaders, Martin Luther King Jr. among them. The FBI justified it all under the familiar rubric of national security — at that time defending "against the communist menace," as Hoover put it.
This time, the attorney general insists, things will be different.
"The abuses that once have been alleged about the FBI decades ago about the keeping of files or records about prominent figures in this country would not be allowed," Ashcroft said late last month.
Nevertheless, critics are cautious.
"Relaxing those restrictions was a good idea and probably overdue," Tribe says. "But it's another thing altogether to say that agents of the government can gradually win the trust of people in political and religious organizations by going there in drag, as it were, posing as ordinary citizens when that's not what they are. That really should be deemed a search."
Mosque Tension
At a mosque in Jersey City that distinction is not lost on worshipers who are wary of FBI agents spying on them.
"They should have search warrants and have justifiable cause for entering a mosque, or just like they [did] in the past," a male worshipper told Nightline. "I think we shouldn't panic all of a sudden and lose all of our social rights and civil liberties."
"It's really … a minor form of profiling," another worshipper said. "And I know many of the people in this mosque would feel the tension if FBI agents started coming in."
But some mosques may have been used to recruit terrorists. Sheikh Abdul Rahman, convicted in the 1993 World Trade Center attack, used mosques in Brooklyn and New Jersey to build his radical anti-American following, and under the old guidelines, such places were off-limits.
"Under our Constitution and under our law, churches have never been a sanctuary, but through guidelines imposed upon the FBI they were made sanctuaries even for terrorist activity," Ricks says.
Internet Surveillance
The FBI's loosened restraints also allow freer access to public areas of the Internet.
"To allow the FBI to search the Internet for bomb-making sites just to find out what's out there, like any 12-year-old girl can, if she sits down at her computer if she chooses to, is very important and it's nonthreatening," Ashcroft said.
But the FBI has far more powerful resources than any 12-year-old girl.
"The moment they are allowed to pierce the content of e-mails, the moment they are allowed to defeat justified expectations of privacy, they are engaged in searches and seizures which are unconstitutional without a warrant," Tribe says. "And I think that the regulations are written broadly enough so that there is a very considerable danger that they are invading privacy."
The FBI already has sophisticated programs in place enabling it to read e-mail with a judge's approval, but just surfing chat rooms, for example, was banned under previous regulations.
"You could literally punch in hydrogen bomb and try to see if people were talking about building a hydrogen bomb and scan that type of activity, but the FBI was precluded from that," Ricks says. "Now that sounds somewhat ludicrous that in some ways they do not have the same capabilities the general public may be able to enjoy."
Enemy Combatants
In confining a suspected terrorist plotter — a former street thug born as Jose Padilla who uses the name Abdullah Al Muhajir — to a U.S. Navy brig without the benefit of a lawyer, the administration justified its action, once again, in the legal language of wartime.
"The safety of all Americans and the national security interests of the United States require that Abdullah Al Muhajir be detained by the defense department as an enemy combatant," Ashcroft said.
"We have acted with legal authority both under the laws of war and clear Supreme Court precedent, which establish that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts."
The precedent most often cited is that of Nazi saboteurs, including at least one American who landed on Long Island and Florida in 1942. The Supreme Court upheld the government's decision to try them in military tribunals, where all were convicted, and most were executed, including the American Herbert Haupt.
But in the case of Jose Padilla, the administration has no plans to try him before a tribunal, only to hold him indefinitely for interrogation.
"The president and the attorney general have characterized him as an enemy combatant," says Donna Newman, a former attorney for Padilla, "and they believe that that entitles them to hold him incommunicado — by their labeling him, not by a court hearing arguments and law, but by their labeling."
"The government cannot have it both ways," Tribe says. "They cannot say that he can be held without trial because he hasn't really been accused of doing anything wrong. And we don't want to mess up our legal system by pretending that what he did is a crime. We don't want thought crimes. But they can't do that and then say, 'We're not going to let him see a lawyer so that a court can test whether we're simply making this up.'"
Detainees
In the aftermath of Sept. 11, federal agents fanned out and detained more than 1,000 immigrants, most of them men of Middle-Eastern descent. Many detainees were held in undisclosed locations, unable to communicate with attorneys for days and weeks at a time.
"We understand that up to … 1,300 were originally detained and it may be down to 100 or less," Sharry says. "But nobody really knows because of the secret nature of the detention."
"The attorney general believes that these are largely immigration cases," Kmiec says. "These are people who are in jail because they've committed some kind of identity fraud or they're in violation of the immigration laws and regulations and that they're subject to deportation."
But exactly how effective have the attorney general's powerful new tools really been? The Sept. 11 hijackers, after all, entered the country on valid visas. And Saudi Arabia, home to 15 of the hijackers, is not on the list that now triggers automatic fingerprinting.
The only suspects tied to al Qaeda since September are the "shoe bomber," Richard Reid, who is British, and Jose Padilla, an American. Of all the other immigrants detained here since September, none has been charged in connection with the attacks.
"How many indictments have been returned on terrorism from those exercises? Zero," Sharry says. "How much useful intelligence has been revealed from that process? … We don't know.
"There may well be [some], but I'm guessing since Attorney General Ashcroft seems no stranger to the press conference, that if we did have evidence that suggested that one of these individuals or that some of the information gained from these interrogations was useful, given the controversy surrounding those measures, that we would have heard about it."