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Our Rights Are Not Abstract

Do We Fear Freedom?

by Robert Corn-Revere

Legal Times

The war against terrorism is a war to preserve freedom, we are told. The president explained that the terrorists “hate us for our freedoms — our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.”

But even as he spoke, the Federal Bureau of Investigation was rounding up an undisclosed number of people for indeterminate periods of detention, and the attorney general has refused to release any substantive information on the practices. In defending these and other actions before the Senate Judiciary Committee on Dec. 6, Attorney General John Ashcroft claimed that those who ask whether we are sacrificing too much freedom “only aid terrorists, for they erode our national unity and diminish our resolve.”

If irony is not dead, it surely is on life support.

In a two-week period in October, the Justice Department announced a policy authorizing the interception of attorney-client conversations with detainees, a program of profiling and interviewing thousands of Arab men, and the creation of secret military tribunals to try immigrants and other foreigners suspected of terrorism.

More significant than these executive actions was Congress’ passage of the anti-terrorism bill — the USA Patriot Act — signed by President George W. Bush on Oct. 26. While some parts of the act provided needed adjustments to the law, its far-reaching provisions affect the rights of all citizens, and not just terrorism suspects. For example, the act minimizes judicial supervision of telephone and Internet surveillance, expands the government’s ability to conduct secret searches, and gives the attorney general and the secretary of state the power to designate domestic groups as “terrorist organizations.” The law also gives the FBI broad access to sensitive medical, financial, mental health, and educational records about individuals without having to show evidence of a crime and without a court order.

It could have been worse, and may yet be so. An initial draft of the anti-terrorism bill would have suspended the right of habeas corpus for all terrorist suspects. Looking forward, Ashcroft reportedly is considering a plan to enable the FBI to spy on domestic religious and political organizations if they are suspected of having ties to terrorists. Various proponents have called for the creation of a national ID card, and there has even been talk of permitting torture.

Dangerous Precedent

For some, such as Rep. John Conyers Jr. (D-Mich.) and columnist William Safire, the response to Sept. 11 recalls episodes in U.S. history — Lincoln’s suspension of habeas corpus, the trampling of free speech during World War I, the internment of Japanese-Americans during World War II, anti-communist witch-hunts of the McCarthy period, J. Edgar Hoover’s obsession with dissident groups — in which the rule of constitutional law broke down.

Others see past examples of extreme actions as supporting precedent that allows aggressive action by the government even if it entails a loss of civil liberties. One such person is respected jurist Richard Posner. The 7th Circuit judge wrote in the December issue of The Atlantic Monthly that civil liberties “should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty.” All that can reasonably be asked of Congress and the courts, he argued, “is that they weigh the costs as carefully as the benefits.”

Yet it is not at all clear that the benefits have been carefully assessed. Eight former high-ranking FBI officials, including former Director William Webster, told The Washington Post in November that the newly adopted tactics, such as rounding up large numbers of detainees, are both ineffective and counterproductive. Noting that the bureau prevented 131 terrorist attacks between 1981 and 2000, Webster said, “We did it without all the suggestions that we are going to jump all over the people’s private lives, if that is what the current attorney general wants to do. I don’t think we need to go that direction.”

Some (and not just the cynics) have suggested that part of the demand for new anti-terrorism authority comes more from the belief that the time is ripe to win concessions than from a conviction that such measures will stop terrorism. A senior U.S. official quoted in the Post noted that “a lot of this is not being driven by problems that prosecutors or investigators are having. It is just a good time to get everything. It is totally politically and public-perception-driven.”

And all of the polling data appear to support this political calculus. A recent ABC News/Washington Post survey found that 86 percent of the respondents support the post-Sept. 11 mass detentions, 79 percent support interviewing thousands of Arab men, 73 percent approve of wiretapping attorney-client conversations of terror suspects, and 59 percent favor the use of military tribunals.

One explanation for such results is that constitutional rights are for most people an abstract concept, while collapsing buildings and death are not. If people believe they can prevent a real horror by trading away a mere abstraction, the choice seems simple. It is easier still to the extent that people believe they would not have to sacrifice their own rights, but only those of “swarthy males,” as columnist Ann Coulter so memorably (and repugnantly) put it.

When the president declared that “freedom is at war with fear” in his Sept. 20 address to a joint session of Congress, he may have had it backward. That is, on the home front, it appears that fear may be winning.

Robert Corn-Revere is a partner at D.C.’s Hogan & Hartson.