"You are not immune," Village Voice columnist Nat Hentoff warns in a Dec. 4 analysis of the impact of the USA Patriot Act, which Congress passed Oct. 26. Hentoff, who writes frequently about Bill of Rights issues, addressed that warning to you and me, and it is worth seconding. We are not immune.
On paper, the provisions of the Patriot Act are directed at outsiders. The new law expands the government's ability to wiretap, search, detain, and deport immigrants suspected of terrorism. It expands the FBI's ability to gain access to the private records of alien students and the financial records of alien-owned businesses. It gives the attorney general carte blanche to designate a domestic group a "terrorist organization," without having to outline or explain his reasons for doing so. Anyone associated with such an organization can become a suspect.
Shortly after the passage of the Patriot Act, the president broadened law-enforcement powers even further through executive order. He declared that the country may try some terrorists by secret military tribunal. He gave prosecutors the right to eavesdrop on conversations between jailed suspects and their attorneys. The attorney general has said that certain religious groups may be targeted for special surveillance.
All of these provisions are very carefully aimed at aliens and alien organizations. But the American Civil Liberties Union (ACLU) and like-minded groups and individuals warn that many might someday be applied to citizens as well. For example, a citizen whose phone is used by a suspect might end up in the government's files under the expanded wiretapping rules. Once that happens, that citizen can be subjected to the same level of secret surveillance that is used against aliens. Similarly, there is nothing to stop the attorney general from targeting other groups on the basis of their political philosophy as opposed to their possible involvement in criminal activity.
"This law is based on the faulty assumption that safety must come at the expense of civil liberties," wrote Laura Murphy, director of the ACLU's Washington office, in a legislative analysis shortly after the anti-terrorism bill passed. "The USA Patriot Act gives law-enforcement agencies nationwide extraordinary new powers unchecked by meaningful judicial review."
Congress, led by a motley coalition of liberal Democrats and conservative Republicans, is timidly beginning to raise questions about these extraordinary new powers. Attorney General John Ashcroft has been called to Capitol Hill to explain to his former colleagues in the Senate the need for secret military trials and the suspension of attorney/client privilege. But most folks appear to be all for this crackdown. A Washington Post/ABC News poll last month found that as many as four out of five Americans support military tribunals, eavesdropping on attorney/client consultations, and the detention of hundreds of immigrants and Arab-Americans. Close to 80 percent of those polled saw nothing wrong with the Justice Department's plan to interview some 5,000 young Middle Eastern men here on temporary visas. More than 80 percent trust the government to protect the civil rights of "[a]verage Americans," and 73 percent trust it to protect Muslims and Arab-Americans.
In a poll conducted at about the same time for National Public Radio, the Kaiser Family Foundation and Harvard's Kennedy School for Government came up with generally similar findings, but did detect a bit of ambivalence. While a healthy majority of those surveyed favored military tribunals for suspected terrorists captured outside of the United States, 70 percent felt that legal aliens arrested within our borders should have the same rights as U.S. citizens. Seventy percent believed that terrorist Timothy McVeigh was properly tried in a civilian court for his bombing of the federal building in Oklahoma City.
All of this is understandable, maybe even prudent. The devastating sneak attack on Sept. 11 shook us all awake to the possibility that terrorists may strike anywhere at any time. The polls suggest that Americans want the government to walk a tightrope. We want a full-scale, relentless counterattack against suspected terrorists. But we don't want to surrender our own civil liberties--not really.
In this light, I can't help but find Nat Hentoff's warning especially appropriate. Unleashing law enforcement is a little like unleashing a virus. Fear, paranoia, and the belief that the end justifies the means could rampage out of control. Terrorism may be the disease, but playing fast and loose with our civil rights is not the cure.
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