New York Times
September , 2001

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."

David Cole is a professor at Georgetown University Law Center.

Copyright 2001. New York Times Company. All rights reserved.

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