Rocky Mountain News Editorial
September 22, 2001


Liberty: Antiterrorism Laws Must Honor Freedom


THE ISSUE: Congress plans to debate terrorism measures
OUR VIEW: It must protect Americans' freedoms

When Congress takes up anti-terrorism legislation next week, it should not allow concern for the security of Americans to diminish their liberties.

A surprisingly broad coalition of civic and religious groups has lined up to endorse a statement by the American Civil Liberties Union defending constitutional principles and urging Congress not to act rashly.

Their concern, and ours, is not motivated by any inclination to treat the threat of terrorism with anything other than the utmost seriousness. Rather, it is based on the knowledge that laws enacted to deal with one emergency remain in place after the emergency has lessened, to be used in circumstances very different from those that inspired the law.

The campaign against organized crime, for example, was the justification given for RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970.

Organized crime was, and remains, a serious problem. But the law is so broadly drafted that it can even be used against a political campaign that trips inadvertently over the complicated rules of campaign finance.

Many of the proposals drafted by the U.S. Department of Justice would extend to terrorism -- or in some cases, to all criminal activities -- the dubious legal tools crafted for the war on drugs. The forfeiture of property on mere suspicion, in cases where no one has ever been convicted of a crime, perhaps never even charged with one, is one example.

Trafficking in illegal drugs is a serious problem, but the excesses of the War on Drugs are also a serious problem. We shouldn't be stampeded into expanding such tactics to vast additional areas of American life without clear and convincing evidence, for each proposed change in the law, that it is both necessary and effective.

Fortunately, members of Congress appear to understand this. Sen. Pat Leahy, D-Vt, chairman of the Senate Judiciary Committee, is working on an alternative package more respectful of civil liberties.

"If the Constitution is shredded, the terrorists win," he said Thursday.

We should also take seriously the possibility that if someone is convicted of terrorism-related acts on the basis of laws subsequently deemed unconstitutional, the courts would overturn the conviction.

Provisions regarding immigrants are especially troubling. We already have a law allowing foreign nationals to be detained, and eventually deported, on the basis of "secret" evidence they are not allowed to see. Because of a few celebrated cases, we know that law has been abused, though not how often.

Now the Justice Department proposes that the U.S. attorney general be authorized to do the same without presenting any evidence at all to a court. We understand the problem: presenting evidence could compromise an ongoing intelligence operation. But we also see the risk.

Americans' privacy would also be eroded by expanding authority for warrantless searches of their communications equipment.

The chief contribution to the tragedy of Sept. 11 was not the absence of these laws; it was the failure to carry out effectively the security precautions that could be implemented with no change in law at all.

Act, but not in haste, or America will repent at length.

Copyright 2001, Rocky Mountain News. All rights reserved.

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