Reagan's agenda for civil liberties

The scales of justice are tilting toward criminals, toward illegal immigrants , and toward people who want to see government files or radicals who blow the covers of American agents abroad.

So charge top officials in the US Department of Justice, which has recently begun to change this perceived tilt. ''What we're doing here could be broadly generalized as tipping the balance back toward a balance,'' says Thomas deCair, spokesman for the department.

''It's gotten so in the criminal justice system the chances of getting convicted are pretty small,'' he continues. And pointing to the influx of Haitians entering Florida, he says, ''We've lost control of our borders and the ability to get rid of people.''

The Reagan administration is now stumping for a long list of reforms in these areas, and it has earned uniform disapproval from the American Civil Liberties Union (ACLU) and others who say the proposals would tread on individual rights. Justice Department officials deny the charge.

''Conservatives are traditionally strong on civil liberties,'' says Mr. deCair. ''This administration is, too. But there has to be a balance.''

He concedes that a faction in the Reagan administration, especially a group of conservatives who have stood by Mr. Reagan since the 1960s, is pushing for more extreme action. ''Some thought that they won the election and they would win their way,'' says the spokesman, adding that the election was not a ''license to do exactly what some ultraconservative special interest groups wanted,'' as in the abortion issue.

Among the issues the administration is pushing forward: Tougher crime laws

Lowell Jensen, assistant attorney general for the criminal division who was a longtime prosecutor in California, picks out the so-called ''exclusionary rule'' as a prime target. By that rule, evidence gained through illegal searches cannot be used in court.

As an example, Mr. Jensen recalls a case involving a high-speed automobile chase in California. When the police reached the car, which had been stolen, they opened the trunk, unzipped a bag, and found a gun and loot from a robbery, he recalls. Later a judge tossed out the evidence on the grounds that the police needed a warrant to unzip the bag.

''The police and everyone else thought that was a perfectly valid way to conduct a search,'' says Jensen. The administration's proposal would permit courts to use such evidence, as long as the police acted in ''good faith.''

Jensen holds that such a measure will still protect citizens from police misconduct. However, he has failed to convince the ACLU and other critics.

Sen. Patrick J. Leahy (D) of Vermont said at a recent committee hearing that during his more than 15 years as a prosecutor, the ''exclusionary rule'' had never forced him to drop a case. Further, a General Accounting Office (GAO) study for Congress has found that very few criminal cases are dropped because of the rule excluding evidence.

''I've been a prosecutor for 26 years, and I see lots of cases thrown out because evidence is excluded,'' counters Jensen. The GAO undercounted the cases, he adds, because it did not include those that the prosecutor dropped immediately because of evidence problems.

Jensen's division is also pushing for the first federal preventive detention law, which would permit judges to hold a defendant without bail until trial, and for new sentencing laws that would put ''career criminals'' in prison for longer periods.

The ACLU opposes virtually all of the Reagan crime proposals. ACLU Washington director John Shattuck concludes that they ''would have no impact on violent crime but they would limit constitutional rights'' and pack more prisoners into already crowded jails.

Jensen responds, ''They'll have effect in individual cases. People who are guilty will be found guilty. That has an impact. The whole process has an impact. Otherwise, you have to argue that the justice system is independent and irrelevant as far as crime control is concerned.'' Freedom of Information

Jonathan C. Rose, assistant attorney general, office of legal policy, maintains that the Freedom of Information Act has damaged America's intelligence gathering and crime control. And he has grown weary of those who charge that he has no proof.

''I've talked to an official in the Canadian government, and he said they were aware that the Royal Canadian Police are not cooperating to the degree they used to because of fear that the information would be made publicly available,'' says Mr. Rose.

He takes out a copy of congressional testimony and begins reading from an organized crime figure's account of using records gained through using the Freedom of Information Act (FOIA) to guess who an informant might be.

Under amendments passed in 1974, the federal FOIA has opened many of the federal government's files to the public. Although officials can withhold information that would damage investigations in progress or reveal the identity of undercover informants, Rose says the protection is not enough.

He ticks off complaints about the act: that criminals use it extensively and that it is used far more by commercial groups than by the journalists and historians for whom it was designed. Some of the radicals now facing charges for the Brinks' truck robbery in Nanuet, N.Y., have received thousands of pages of Federal Bureau of Investigation files through the Freedom of Information Act, he points out.

The Reagan reform would exempt most FBI and Central Intelligence Agency records from the act. It would also make it easier for agencies such as the Consumer Product Safety Commission to keep secret more information about private industries.

Supporters of the act such as the Reporters' Committee for Freedom of the Press charge that the Reagan proposals would be a signal to all governments, including local and state, to begin closing doors to the public.

The ACLU's Shattuck recently testified in Congress that ''access to government records through the FOIA can give ordinary individuals a fighting chance in some of the entanglements they have with the federal bureaucracy.'' He added that it was ironic that the Reagan administration which promised to ''get the federal government off the backs of the people'' had been harsh on the Freedom of Information Act.

Rose maintains, however, that the administration does not oppose the act. He says of the proposed change, ''It is an effort to redraw the balance between disclosure of highly sensitive files vs. openness of all files.'' The Freedom of Information Act is a ''useful tool,'' says the assistant attorney general, adding that he has used the act in his law practice. Immigration laws

David D. Hiller, special assistant to the attorney general, has been overseeing the Justice Department's efforts to stem the tide of illegal aliens. ''As a policy matter, I don't think it can be disputed that absent militarization of our borders, something has to be done to eliminate the economic attractiveness of the US,'' he says.

The Justice Department has already ordered immigration officials to turn back boatloads of would-be immigrants as they leave Haiti for Florida. (As of this writing, only one such boat has been intercepted and its passengers sent back to Haiti.) Now the department is seeking a law to streamline proceedings so that thousands of illegal aliens can be expelled. The proposed changes would cut off several layers of judicial proceedings now open to many of these aliens.

The Reagan proposals also include penalties against employers who hire illegal aliens.

Civil libertarians hold that aliens are entitled to due process of American laws, not streamlined administrative reviews. The ACLU warns that employer sanctions might result in employers discriminating against legal residents who look foreign.

Mr. Hiller counters that a ''permissive policy is the most inhumane of all'' because it creates an illegal subcaste that can be exploited. He adds that employer sanctions do not permit job discrimination, since the employer will be off the hook as long as he has asked his worker for two forms of identification, including a social security card. Revealing identities of American agents

Following in the footsteps of the Carter administration, the Reagan Justice Department is pushing for a law that would make it a crime for a person, including a journalist, to expose intentionally foreign intelligence activities of the US.

At least 140 law professors have labeled the bill unconstitutional, a charge that Richard K. Willard, counsel for intelligence policy for the Justice Department, disputes. He cites a recent Supreme Court decision granting the secretary of state the power to revoke a passport of a citizen who is seen as damaging American security abroad.

''The bill is narrowly drawn to protect the identities of CIA agents,'' says Mr. Willard. ''The restraint on free speech is limited. It is not an official secrets act.''

Willard concedes that a writer could be prosecuted even if the information used to reveal an undercover agent came from public sources, but he says that the act is aimed at extremists who are deliberately trying to disrupt American policies, not at legitimate journalists.

The ACLU is trying to modify the proposal by requiring proof that the person had the ''intent'' of impairing US activities, a change that the Justice Department is resisting.

The agents identities bill, preventive detention, and other proposals have been tried on Capitol Hill in the past and failed. The conservative winds may bring a different result this time. Justice Department spokesman deCair, reviewing the stands taken in the department, remarks that ''there really hasn't been that much criticism'' from the outside.

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