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Civil liberties ebb in favor of security in a post-Sept. 11 U.S.

Ron Harris / St. Louis Post-Dispatch | August 6 2006

WASHINGTON - Some of the actions taken after terrorists attacked the U.S. five years ago sound like the doings of a South American dictatorship or Orwellian fiction.

Hundreds of men across the country are singled out because of their religion or ethnicity, rounded up by law enforcement and held secretly by the government in detention facilities. The government refuses to divulge their names. The government says the men came from countries with ties to terrorism.

There are secret hearings, but even after judges say the men can be freed, the government continues to hold them.

While detained, many of the men are physically and verbally abused, according to a report by the Office of the Inspector General.

On college campuses and other locations, thousands of immigrant men, again identified by their religion, ethnicity or country of origin, are questioned by law enforcement agents about their affiliations. Others are told to report to special centers where they are questioned, photographed and fingerprinted.

Congress passes laws that give law enforcement the right to troll though library records to see what books citizens have been reading, to monitor their e-mails and Internet communications, to secretly enter their homes.

A government agency secretly begins monitoring citizens' international telephone calls. The government secretly asks telephone companies to hand over records of customers' telephone calls, and some of them comply.

A federal judge rules that noncitizens can be arrested and detained indefinitely based on their race, religion or country of origin, even though they have not committed a crime.

The nation's highest court upholds the government's right to hold people secretly.

As America commemorates the fifth anniversary of the greatest single attack on the continental U.S., the nation continues to wrestle with the balance between civil liberties and safety. How does it give government the tools to protect its citizens from terrorism while upholding Americans' fundamental liberties?

"That's the struggle," said Sen. Jim Talent, R-Mo., a member of the Senate Armed Services Committee. "The government needs to have the power to protect the country, but you want to have oversight so that there is not abuse."

Immediately after the terrorist attacks on Sept. 11, 2001, a shocked and frightened nation rushed to protect itself.

Anxious neighbors, co-workers and employers reported as "suspicious" hundreds of Arab and Muslim men who were quickly rounded up by law enforcement and secretly detained.

Congress quickly passed the Patriot Act, giving law enforcement broader powers to combat terrorism and allowing greater intrusions into Americans' lives. Only one member of the Senate voted against the bill. Most of the members had not read the 1,000-page document.

America seldom had been so willing to relinquish personal liberty as it was following Sept. 11. A New York Times/CBS poll after the attacks showed that 74 percent of those interviewed would give up some civil liberties on behalf of homeland defense. Thirty-nine percent said they would allow the government to monitor their telephone calls and e-mail messages.

"After 9/11, we understandably swung too much," said Neil Richards, a Washington University law professor. "It was a massive trauma to the country. There seemed to be a need to do something. The Patriot Act was rushed through without very much deliberation, and a lot of issues were confused.

"We lost sight of the fact that we need executive review and a limited role of the executive branch. We don't want to live in a police state. In the long run it's better with a little less security if it means we're not going to have the government watching what we read, who we talk to."

Years later, however, Americans seem just as willing to allow greater intrusion by the government if it will protect them from a terrorist attack.

The revelation late last year that the National Security Agency had been eavesdropping on U.S. citizens' telephone conversations beginning in 2002 without court permission or any other oversight, did not draw widespread protests.

Neither did reports that the government was secretly monitoring residents' international bank transactions nor that it had asked telephone companies for their records so it could track citizens' calling patterns.

Historically, wartime presidents have tended to try to expand their powers at the expense of fundamental liberties guaranteed by the Constitution.

During the Civil War, President Abraham Lincoln suspended habeas corpus, the right of Americans to be brought before a court at a stated time and place to decide the legality of their imprisonment.

During World War I, about 2,000 critics of President Woodrow Wilson's administration_ranging from anarchists and communists to pacifists and civil libertarians_went to jail under the Espionage and Sedition Acts, often merely for questioning the administration's war aims.

During World War II, President Franklin Roosevelt had more than 100,000 Japanese-Americans citizens forcibly removed from their West Coast homes and imprisoned for the war's duration.

A similar struggle is taking place today in Washington as President George W. Bush seeks to expand his power to protect Americans from another terrorist attack.

Initially, the courts and Congress gave the president broad latitude, but recently they have begun to push back.

The day after revelations of the NSA eavesdropping on U.S. citizens phone calls last December, the Senate refused to renew the Patriot Act without changes that would provide greater protection against unwarranted intrusions.

In late June, senators on the Judiciary Committee accused Bush of an "unprecedented" and "astonishing" power grab. Using what are known as signing statements, the president reserved the right to ignore or not enforce more than 750 laws enacted since he became president based on whether he personally thinks they violate the Constitution, threaten national security or impair foreign relations.

That same month, the U.S. Supreme Court ruled that the administration's use of tribunals for suspected terrorists at Guantanamo Bay, Cuba, violated international and U.S. law.

While some argue that the administration has crossed the line, many in Congress, like Talent and Sen. Orrin Hatch, R-Utah, say the president has acted properly.

"Did the executive branch go too far? No," said Hatch, a ranking member of the Senate Judiciary Committee. "The president has had the power to use military force. But even without those, all presidents, from George Washington right on down, have exercised inherent powers to protect the homeland, to protect our border, to protect our country.

"And this president would be severely criticized by the very people who are now criticizing him if he didn't do the things that were necessary to protect this country and we all of a sudden have further catastrophes that could have been prevented."

That view is not unanimous.

"I think this administration has been very reckless in trying to grab as much power as they can," said Sen. Russ Feingold, D-Wis., a member of the Senate Judiciary Committee and the only senator to vote against the original version of the Patriot Act. "There is loud concern that that the balance has failed."

Even members of Bush's party have been critical.

Sen. Lindsey Graham, R-S.C., said he recognizes that executive branches throughout history have tried to expand their power during times of war.

"But it's never been so robustly pushed as it has with this administration," Graham said. "I would argue that it has been pushed too far. I would argue that we need a balance."

For some, the most disturbing change has been the secrecy surrounding the government's anti-terrorism efforts.

"An important element of our constitutional democracy is openness," said Muzaffar A. Chishti of the Migrant Policy Institute at New York University.

"That's what separates us from the dictatorships of Argentina and Chile where people were rounded up and just disappeared . . . Even during the Japanese internment, we told people where these people were. Here we did not tell where the people were.

"The hearings were held in secret. Secret evidence was introduced against them. The biggest issue at the end of the day, the most troublesome thing was secrecy."

Richards of Washington University said that despite some bumps, the system of checks and balances appears to be working as the courts and Congress rein in the administration.

"While they are certainly willing to give some deference to the executive branch, more generally they have not engaged in a wholesale abdication of a bunch of long-standing civil liberties, and they've actually rejected some of the broader assertions of government power," he said.

"The courts are taking the issue of terrorism seriously, but the basic issue is the courts have refused to give up their right of judicial review.

"The Supreme Court has said, `We are still in charge here when it comes to determining what individual civil liberties are vis-a-vis the government.'"

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