Fragile Freedoms

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.

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?

It's war

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.

What the feds are doing

In terms of number of people affected, the FBI's massive roundup of men of Middle Eastern origin has been its most dramatic action so far. More than 1,000 have been arrested since Sept. 11; more than 500 are still in jail. Many of these men are being held on immigration charges. Under a Justice Department rule change effective Oct. 29, noncitizen detainees considered a danger by prosecutors can be kept in jail even if a federal immigration judge orders them released.

At least 55 people have been detained on criminal charges. Of these, it is unclear how many the government believes may have ties to Al Qaeda. One block of 22 suspects consists of Arabs who may have obtained permits to transport hazardous materials under false pretenses. That's highly suspicious, given the current climate, but so far the US thinks they were not an Al Qaeda sleeper cell.

One person prosecutors do contend was part of an Al Qaeda plot is Zacarias Moussaoui. Born in France of Moroccan parents, Moussaoui was detained in August after officials became suspicious about his brusque behavior at a Minnesota flight school. This week he was indicted by a federal grand jury in Virginia on charges of being connected to the Sept. 11 conspiracy.

The US has new powers to eavesdrop on at least some of its detainees, too. On Oct. 31, the Justice Department quietly published a rule allowing investigators to listen in on lawyer-detainee conversations. The Justice Department says only 16 people currently in prison have been categorized as possibilities for such monitoring. But civil libertarians still consider this a dangerous due-process precedent.

The administration's request that an additional 5,000 men from Middle Eastern nations voluntarily submit to FBI interviews has similarly come under fire. While many Americans want such interviews to occur, critics say the move smacks of coercion. On Nov. 29, Mr. Ashcroft said immigrants might get visa help if they pass along information about anti-US plots - a move at least partly intended to make submitting to voluntary interviewing seem more attractive.

What other presidents did

So far, the US public strongly approves of administration law-enforcement actions. In recent polls, the Justice Department's detention policy wins 70 to 80 percent approval, for instance. And a sizable majority supports the questioning of thousands of Middle Eastern men.

Right now Americans appear to rank security as their first priority, with protection of civil liberties further down the list. That's common in wartime, note historians - and US presidents have generally acted accordingly.

Franklin Delano Roosevelt, for instance, approved the detention of more than 100,000 ethnic Japanese - two-thirds of them US citizens - despite little evidence that any among them were enemy agents. He bowed to the belief of many on the West Coast that a Japanese attack on California might be imminent, and that the US had to do all it could to prevent such a strike.

Attorney General Francis Biddle, who opposed the internment, noted in his memoirs that F.D.R. did not even bother to convene a high-level government meeting on the move's implications. He approved it in a phone call with his secretary of war.

"The Constitution has not greatly bothered any wartime President," wrote Biddle.

During the Civil War, Abraham Lincoln famously suspended the right of habeas corpus. He also closed down newspapers he considered founts of sedition. At one point, he simply arrested Maryland legislators who were preparing to vote against his wishes.

Even Woodrow Wilson, that most idealistic of presidents, took harsh action against domestic opponents during World War I. Under terms of an Espionage Act Wilson had urged through Congress, his administration prosecuted those who advocated resistance to the military draft.

It is against this historical context that Bush administration actions need to be judged, according to some historians.

"What is being done today pales in comparison to anything these other presidents [did]," says historian Jay Winik.

A squeeze too far?

But is the historical perspective, in this case, a distorted view? Critics of Bush's actions argue that America's civil liberties have developed in a long, generally upward-moving trend. The point, they say, is potential damage to current notions of due process and privacy, not comparison with actions taken in long-gone legal and social contexts.

In the short run, critics say Bush actions have already harmed at least one identifiable US group: people of Arab descent.

The Justice Department's widespread dragnet for Middle Eastern natives might be understandable, given the times. It may even have accomplished Ashcroft's stated ends of disrupting terrorist cells and preventing future actions. But increasing evidence points to abuse of many innocent detainees, say critics. In that aspect, its conduct may be flawed.

Senate testimony last week heard the case of Ali al-Maqtari, a Yemeni teacher of French, who was held for eight weeks on immigration charges despite the fact that he had recently married an American citizen and was seeking resident status. He was arrested on Sept. 15, when he drove his wife, Tiffinay, an Army reservist, to Fort Campbell, Ky., to report for duty.

During interrogation, Mr. al-Maqtari was threatened with unspecified "evidence" of terrorist activity which, he said, never materialized. He then passed a lie-detector test, and claimed he was told he would soon be released. That was only a few days into his ordeal. In fact, he would not be released for another seven weeks.

It is unclear how many innocent people have been similarly swept up in the Justice Department effort. Civil liberties groups last week sued the Justice Department, accusing it of withholding basic information about its dragnet, including the names and locations of many being held.

"There is this incredible veil of secrecy that is shrouding the arrest and detention process," says Lucas Guttentag, head of the ACLU immigration-rights project.

Justice officials have defended keeping the process secret on two grounds: It protects the privacy of detainees who are innocent, and it prevents Al Qaeda from finding out if its operatives have in fact been caught.

Officials have also said that national origin - not ethnicity or religion - is the main criteria used to single out detainees. Therefore, the effort does not represent racial profiling, according to the administration.

If that is so, it is so only by the thinnest of margins, say critics. They claim that law enforcement has crossed a line, and now is engaged in just the sort of broad stereotyping against which African-Americans have long struggled.

At a time of increased threat, it makes perfect sense for the nation as a whole to accept a little less free speech, or a little less due process, in exchange for greater security, says Mr. Klarman of the University of Virginia. "But I think we have to be really concerned when we're trading off the interests and protections of some small minority group that has no political backing at all for the greater security of everyone," he says.

An uncertain future

In the long term, civil libertarians charge, the recent expansion of law-enforcement power could pose legal and privacy problems for all.

Take government access to student records. Such access used to require a subpoena issued by a judge who had determined that investigators had evidence of "probable cause" of wrongdoing by the student in question. The just-passed Patriot Act has made such access easier to obtain. Now a subpoena can be issued if a judge agrees that the educational records requested might contain information "pertinent" to an investigation.

At least 200 colleges and universities have replied to such requests by federal officials since Sept. 11, according to the American Association of Collegiate Registrars and Admissions Officers (ACCRAO). These requests focused on foreign students, but not exclusively. Records for some US citizens enrolled in flight schools were tapped.

The worry of some university administrators is that, in the future, the US government might sweep up information about students who fit a particular profile, using this new authority. More anthrax attacks might lead to a broad probe of, say, people with advanced degrees in microbiology.

"There are certain things that should not become pseudo-criminalized, such as microbiology, infectious disease experts, [and] people who study aerosol physics," says Barmak Nassirian of the ACCRAO.

Other aspects of the Patriot Act that might have long-term implications include its approval of secret "sneak and peek" searches of suspects' residences, and new money-laundering provisions that might make it more difficult to move assets out of the US for legitimate purposes.

On one thing almost all civil experts are in agreement: In the near future, the debate about the proper balance of rights versus security will be greatly influenced by the course of terrorist activity.

Right now, the nation is beginning to breathe again following the events of Sept. 11. If the terrorist threat remains in abeyance, critics of the domestic crackdown, such as Sen. Patrick Leahy (D) of Vermont, might be emboldened to increase the volume of their complaints.

But another attack, even if does not approach the scale of the events of Sept. 11, could quickly lead to calls for more domestic law-enforcement power.

Reported by staff writers Liz Marlantes and Gail Russell Chaddock.

A history of rights abridged
1798: John Adams makes criticism of government a criminal act

Fear of a French invasion leads Congress and President John Adams (below) to enact the Alien and Sedition Acts. The acts give the government sweeping powers to deport any alien considered dangerous to the nation's welfare, and to imprison anyone found guilty of criticizing the government. Numerous individuals are sent to prison. In 1800, Thomas Jefferson campaigns against the law, and after his election, pardons those convicted under it. In 1964, the US Supreme Court rules that the law had been unconstitutional.

1861: Abraham Lincoln detains thousands, ignores court

During the Civil War, President Abraham Lincoln (below) suspends the writ of habeas corpus, arresting anyone who expresses sympathy with the South and holding them without presenting evidence against them or giving them a trial. Hundreds of draft resisters are imprisoned, along with newspaper editors, judges, lawyers, and legislators. By some estimates, more than 13,000 people are arrested overall. When Chief Justice Roger Taney declares the president's actions unconstitutional, Lincoln blatantly ignores the ruling. He also shuts down newspapers that express pro-South views.

1917-18: Under WIlson, socialist leader imprisoned for years

Nervousness about German spies during World War I leads Congress and President Woodrow Wilson to approve the Espionage and Sedition Acts. The acts give the government authority to censor the foreign language press, bar antiwar publications from using the US mail, and punish anyone expressing disloyal or antiwar sentiments. Some 2,000 people are prosecuted. Socialist presidential candidate Eugene V. Debs (below, left) is imprisoned for a decade, as is Charles Schenck, author of a pamphlet claiming the draft was illegal. The Supreme Court upholds Schenck's conviction.

1942: 120,000 residents of Japanese Heritage are interned

After the attack on Pearl Harbor, President Franklin Roosevelt signs an executive order authorizing the internment of 120,000 people of Japanese descent, two-thirds of whom are US citizens (below). None is accused of any crime. They are not released until four years later, in 1946. The US Supreme Court upholds the decision. (In 1988, Congress grants surviving internees $20,000 each and an official apology from the US government.) Also in 1942, eight Germans are caught trying to sabotage US war industries and are tried by military tribunal. The Supreme Court upholds the decision, and six are executed.

1949-54: Communists imprisoned during McCarthy era

During 1950s, Sen. Joseph McCarthy (below, center) fans fears of communism, leading to the prosecution of leaders of the Communist and Socialist Parties under the Smith Act. Passed in 1940 but little used until a decade later, the act makes it a crime to advocate violence against the government. Some individuals are sentenced to prison simply for studying works of Marx and Lenin. The Supreme Court upholds the convictions.

1996: After bombing, new laws on secret evidence, death row

After the bombing of a federal building in Oklahoma City by Timothy McVeigh (below), Congress passes counterterrorism legislation limiting habeas corpus for death-row inmates - restricting certain appeals - and allowing immigrants who are terror suspects to be held and deported based on secret evidence.

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