The New York Times
September 10, 2002
Editorials
It would be easy to dismiss the harm that has been done to our civil liberties
in the past year. Most of us do not know anyone whose rights have been seriously
curtailed. The 1,200 detainees rounded up after Sept. 11 and held in secret were
mainly Muslim men with immigration problems. So were the people the government
tried to deport in closed hearings. The two Americans, who were labeled "enemy
combatants", hustled off to military brigs and denied the right even to meet
with a lawyer, are a Saudi-American man captured in Afghanistan and a onetime
Chicago gang member.
There is also no denying that the need for effective law enforcement is greater,
than ever. The Constitution, Justice Arthur Goldberg once noted, is not a suicide
pact.
And yet to curtail individual rights, as the Bush administration has done, is to
draw exactly the wrong lessons from history. Every time the country has felt
threatened and tightened the screws on civil liberties, it later wished it had
not done so. In each case - whether the barring of government criticism under
the Sedition Act of 1798 and the Espionage Act of 1918, the internment of
Japanese-Americans in World War II or the McCarthyite witch hunts of the cold
war - profound regrets set in later.
When we are afraid, as we have all been this year, civil liberties can seem
abstract. But they are at the core of what separates this country from nearly
all others; they are what we are defending when we go to war. To slash away
at liberty, in order to defend it, is not only illogical, it has proved to be
a failure. Yet that is what has been happening.
Since last September the Bush administration has held people in prison indefinitely
and refused to tell the public who is being held or even how many detainees there
are. No less odious, than the administration's secret arrests are its secret trials.
The government has barred the public and the press from deportation hearings for
immigrants suspected of ties to terrorism.
The administration has also shown contempt for basic rights in its enthusiasm for
military tribunals. In November, when President Bush first issued the order setting
these up, it seemed the administration wanted to try anyone alleged to have ties to
terrorism, even American citizens arrested in the United States, in military courts.
Faced with an uproar, the administration backed down, announcing that the tribunals
would accord defendants some rights. It then decided to try several prominent terrorism
suspects in civilian courts.
This summer the administration unveiled with great fanfare the TIPS program (for
Terrorism Information and Prevention System) to recruit Americans to spy on their
fellow Americans. As originally conceived, TIPS was to include mail carriers, utility
workers and others with access to people's homes. Again, after a popular outcry the
administration scaled TIPS back.
In times of conflict the president seeks to increase his power. Congress, sensitive
to public fears over safety, cannot always be counted on to stand up to him. That
leaves the judiciary and members of the public to worry about the trampling of rights.
This year a number of judges have stood out for their courage. Gladys Kessler of
Federal District Court in Washington, D.C. declared that secret arrests were "odious
to a democratic society" and ordered the government to release the names of all
detainees. It has not done so. And Judge Robert Doumar od Federal District Court in
Norfolk, VA, who is presiding over one of the "enemy combatant" cases, recently told
prosecutors to submit documents for his review, so he could determine, if the defendant
was in fact an enemy combatant. The Justice Department disgracefully defied his order.
As the Bush administration continues down its path, the American people need to make
clear that they have learned from history and will not allow their rights to be rolled
back. The world has changed since Sept. 11, but the values this country was founded on
have not. Fear is no guide to the Constitution. We must fight the enemies of freedom
abroad without yielding to those at home.