Which civil liberties - and whose - can be abridged to create a safer America? Part 1 of a three-part series.
Sixty years ago, after the shock of the Japanese attack on Pearl Harbor, one of the strongest proponents for the forcible internment of ethnic Japanese in the US was California Attorney General Earl Warren. That's the same Earl Warren who, years later, served as a famously liberal chief justice of the US Supreme Court.Skip to next paragraph
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At the same time, the nation's senior law-enforcement official, FBI Director J. Edgar Hoover, argued that such internment would just cause hardship for a group of generally loyal citizens and residents. This, from a top cop who even then seldom let legal niceties get in the way of his pursuit of criminals.
The point here is not that the politics of civil liberties makes for strange opponents, as well as bedfellows. It's that the proper balance between civil liberties and security in wartime can be fiendishly hard to strike.
Once bullets begin to fly, government officials must judge how much danger the nation is in, where those dangers lie, and whether defense against them requires some abridgement of much-cherished individual rights - all under the pressure of onrushing time.
History shows that they don't always get it right. The World War II internment of those of Japanese ancestry is today widely seen as a blot on the nation's honor.
History also shows that in time of crisis, US officials usually err on the side of tightening domestic law enforcement too much, rather than too little - and that that's what the public generally wants them to do.
"People are willing to trade almost anything for greater security if they think it would make a difference," says Michael Klarman, a professor of law and history at the University of Virginia.
The moral balancing act boils down to questions like this: Is it right to abridge the civil liberties of, say, 1,000 people, if a terrorist cell might be broken in the process?
The Bush administration's push for expanded domestic law-enforcement powers is rooted in the assumption that the US is literally fighting a war on its own soil. Congress has not passed a declaration of war, as such - it didn't for Vietnam or the Gulf War, either. But since Sept. 11, administration officials have repeatedly stressed that the attacks on the World Trade Center and the Pentagon were much more than crimes, and that the government is on a war footing in the US as much as it is in Afghanistan battles.
The adversary in this war does not want to fight the US military, according to administration reasoning. Its preferred target is ordinary Americans, in their homes and places of work. That's a new threat, and guarding against it may require a new kind of domestic police work.
"We're battling an enemy committed to an absolute unconditional destruction of our society," said Attorney General John Ashcroft during an appearance before the Senate Judiciary Committee last week.
In response, the administration has quickly hammered together an ungainly, multipiece package of legal changes which, taken together, represent a profound increase in federal policing powers. Some of the changes were approved by Congress as part of the "USA Patriot" legislation passed in late October. Some are unilateral, the result of executive orders or rule changes quietly announced in the Federal Register. Some are simply an aggressive use of existing legal authority, the Justice Department says.
Not all of them have come into play. President Bush may have approved the use of military tribunals to judge terrorist suspects, for instance, but no tribunals have yet been held.
One area where the changes have surely had a cumulative impact, however, is on Washington debate. Criticism of the war in Afghanistan has been muted, but domestic legal changes are controversial - the subject of the most heated public exchanges so far dealing with the post-Sept.-11 conduct of the executive branch.
"A lot of the things that have been done are a significant erosion of basic freedoms and don't enhance national security," says Erwin Chemerinsky, professor of law at the University of Southern California.