New York Times Liberties in a Time of Fear By David Cole WASHINGTON -- In the
wake of the terrorist attacks of Sept. 11, nothing is more important
than ensuring that Americans are protected on our home soil. But in
doing so, we must not let the symbolic need to do something in a
time of fear lead us to sacrifice our constitutional commitments to
freedom. The Bush administration has already proposed giving government
greatly expanded powers, including broader authority for electronic
surveillance and the ability to detain and expel immigrants not for
their acts but for their associations. Others have suggested that
ethnic and racial profiling of Arabs and Muslims may now be
justified. Yet no one has made an adequate case that our intelligence
agencies failed to detect the Sept. 11 plot because we lacked
surveillance power. In fact, the government already has
extraordinarily broad powers to wiretap, investigate, detain, deport
and prosecute terrorists. History suggests caution, for in times of fear we have virtually
always overreacted, loosely targeting whole groups of people for
suspicion rather than narrowly focusing on those engaged in criminal
conduct. Such responses now would be likely to prove
counterproductive in the fight against terrorism. Eighty years ago, the United States was shaken by a series of
politically motivated bombings, including an explosion at the home
of Attorney General A. Mitchell Palmer. In the "Palmer raids" that
followed, federal agents in 33 cities arrested 6,000 people, most of
them immigrants, on suspicion of connections to radical causes.
Suspects were beaten, detained in intolerably crowded "bullpens" and
forced to sign confessions. During World War II, the government interned 120,000 citizens and
immigrants, not because of any individualized determination that
they posed a threat but solely because they were of Japanese
ancestry. Facing the Soviet threat in the 1940's and 50's, we imposed
criminal and civil penalties on individuals for mere association
with the Communist Party, even if those dealings were limited to the
party's lawful activities, like labor organizing. And in 1996, after the Oklahoma City bombing, Congress authorized
the Immigration and Naturalization Service to deport immigrants on
the basis of secret evidence and made it a crime to provide any
support to any foreign organization labeled as a terrorist group by
the State Department, even if that support is used solely for lawful
activities. In retrospect, we have recognized that most of these responses
were mistakes. Congress paid restitution to the Japanese internees
in 1989. The anti-Communist laws were eventually declared
unconstitutional or repealed. And President Bush himself has
expressed concern about the I.N.S.'s practice of using secret
evidence. Yet in the immediate grip of terror and anger, voices of
restraint are not easily heard because while we all feel the fear
created by an attack, we don't all bear the burdens on civil
liberties imposed by new law-enforcement responses. We must resist antiterrorism measures that we would not be
willing to impose uniformly. Airport security measures imposed on
all travelers, for example, are likely to reflect a proper balance
between security and freedom, because we all have a stake in
maintaining that balance. But measures selectively targeted at
particular groups or individuals are more subject to abuse. What's more, guilt by association and ethnic profiling encourage
sloppy intelligence gathering and impede security efforts. Over the
last 15 years, for example, the I.N.S. has selectively detained Arab
aliens on secret evidence for their political affiliations; this has
made the Arab-American community suspicious of federal intervention,
which in turn can make the job of identifying real threats even more
difficult. Precisely because the terrorists violated all principles of
decency and law, we must hold fast to ours. As the Supreme Court
said in a 1967 decision that invalidated an anti-Communist law, "It
would indeed be ironic if, in the name of national defense, we would
sanction the subversion of one of those liberties — the freedom of
association — which makes the defense of the Nation worthwhile."
Copyright © 2001. New York Times Company. All rights reserved. saved from url: http://www.nytimes.com/2001/09/25/opinion/25COLE.html
September , 2001
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