Liberties in a Time of Fear
" 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.
September 25, 2001
From The New York Times
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.
nytimes.com |
