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Dateline: Civil Liberties and Terrorism - 2001-10-02

In the wake of the terrorist attacks on September 11, a quiet but important debate has emerged concerning the most effective way to deter potential terrorists. The United States is an open and democratic society with guarantees of civil liberties to its citizens. But will civil liberties become a casualty of the war on terrorism? Or will Americans balk at yielding what have been traditional guarantees regarding freedom of movement and speech?

The aftermath of the attacks against the United States has prompted both the government and the private sector to suggest security measures aimed at preventing such strikes in the future. Some observers think these suggestions, which would limit civil liberties, would be counterproductive and harmful to the welfare and future of the country, no matter how perilous the times.

Attorney General John Ashcroft stressed the need for a heightened sense of security in his testimony before the House Judiciary Committee on September 24. "Everyday that passes with outdated statues and the old rules of engagement is a day that terrorists have a competitive advantage," says Mr. Ashcroft. "Until Congress makes these changes, we are fighting an unnecessarily uphill battle."

The administration's package, as proposed by Attorney General Ashcroft, would expand the authority of law enforcement officials to wiretap telephones of suspected terrorists and make it easier to track their electronic communications. It would also permit courts to use information on suspects gathered and supplied by foreign governments. In addition, the administration would eliminate the statue of limitations on terrorist crimes, and make harboring terrorists an offense. While the fight against terrorism would be a national priority in the criminal justice system, Attorney General Ashcroft made a point that "technology has dramatically outpaced our statutes". "It is our position at the Justice Department and the position at this administration that we need to unleash every possible tool in the fight against terrorism," says Mr. Aschcroft. "And to do so promptly because our awareness indicates that we are vulnerable and that our vulnerability is elevated as long as we don't have the tools we need to have."

While the lawmakers expressed little concern with updating the technology for law enforcement officers, they did voice other worries. Members of Congress have balked at broadening surveillance powers and easing restrictions on the government's ability to detain or depor suspected alien terrorists.

Rep. John Conyers, the top Democrat on the House Judiciary Committee, was one of those who feared that many of these proposed provisions would not pass constitutional muster. "There are a number of amendments in your proposals … that give us constitutional trouble," he said. "We've got to get these guys. But indefinite detention has never been allowed by courts up till now."

Similar objections have been raised by civil liberties groups on the left and the right. Nadine Stossen, national president of the American Civil Liberties Union in New York, is worried that, as she put it, "all these provisions together will amount to a breathtaking expansion of federal power". "Our overriding concern is that they would compromise privacy and freedom for vast groups of people in this country. Every non-American is subject to intensified detention and even deportation proceeding without any evidence at all," says Ms. Stossen. "All people who use electronic communication are subject to pervasive surveillance without the traditional court order that's required for wiretapping."

Some immigration lawyers are also concerned about Attorney General Ashcroft's proposal to let the government deport foreigners if they give aid, even unknowingly, to any group that has an association with terrorist acts. If passed, the legislation would be retroactive.

David Cole, a law professor at Georgetown University, voices those worries. "What the administration is proposing to do is simply to impose guilt by association on all immigrants by making people deportable, not for their involvement in or connection to or facilitating a terrorist activity but for their associational activity even wholly innocent humanitarian, peaceful, lawful support of any group that has ever used or threatened to use violence," says Mr. Cole. "So under the Bush proposal someone who gave money to the African National Congress today would be deportable as a terrorist because 15 years ago the African National Congress used military as well as lawful means to fight apartheid. I don't see that as a measured and calibrated response to the problem. I see it as going down the same road of guilt by association that we went down during the McCarthy era."

On the other hand, as former Time Magazine reporter David Aikman says, the current situation calls for a focus on immediate action. But he thinks the administration will get half a loaf. "The argument against it is of course well, we're at war and we're dealing with implacable adversaries who will use any single soft spot in our system to take advantage of us and create chaos. I think there has to be a balance worked out," says Mr. Aikman. "I suspect that in the end the Congress will not approve of some of the tighter measures but in terms of the detention of undocumented aliens I think the Congress will support the federal government on this."

Congress has already promised such a debate. Senator Patrick Leahy, a Democrat who heads the Senate Judiciary Committee, has issued a competing package of alternative proposals. These could provide a basis for compromise. "We will move quickly to give them tools for the military and for our own investigatory agencies," he says. "But I think we also want to make sure that we don't create a situation that the terrorists would have loved, if we remove our own freedoms as Americans some would argue that the terrorists have won … That's not gonna happen. We will strike a balance."

Phillip De Vous, the public policy manager at the Acton Institute, agrees, saying that eroding the essential liberty upon which the United States is founded, would hand an easy victory to the forces of terror and undermine the very essence of a free society. "We have to balance the two priorities and I think two essential priorities of national security and civil liberties. The great, I think, exciting and unique thing about America is that our citizenry enjoys a level of personal freedom and personal movement really unseen in other nations in the world and it is this freedom that has allowed us to be a prosperous nation: harnessing what I think is the entrepreneurial genius that has made America great and unique in the world," says Mr. De Vous. "Benjamin Franklin once said in a pithy little comment he made about this very kind of issue was, and I quote, 'They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety'. I think we have to be prudent in ratcheting down peoples' civil liberties; at the same time, it is certainly intention with the need to make also sure that our republic is safe from further terrorist attacks."

While testifying before the House Judiciary Committee, Attorney General Ashcroft assured that the Department of Justice is fully committed to protecting the rights and privacy of all Americans. "This Justice Department will never waiver in our defense of the Constitution nor relent our defense of civil rights," he says. "The American spirit that rose from the rubble in New York knows no prejudice and defies division by race, ethnicity or religion. The spirit which binds us and the values that define us will light America's path from this darkness."

Of course where to draw the proper line between the need for security in times of emergency, and the need to maintain the rights of a free people, is a debate as old as the Republic itself.

Where this current generation chooses to locate that line will be the subject of much discussion in meeting rooms and living rooms in the weeks and months ahead.