Terrorizing the Constitution

I am not surprised that John Ashcroft would seize any real or imagined pretext to inflict draconian damage on civil liberties. Much more astounding has been the almost complete capitulation by Democrats in Congress to his radical agenda. If grassroots activists can't summon the courage to resist, all Americans may pay a high price for the loss of these liberties.

It has never been more important to distinguish between political rights and personal conveniences. Being required to wait longer at an airport so that luggage can be searched is an inconvenience but not an injustice. All of us are subject to such searches and no one has a right to carry bombs or weapons onto planes. Nonetheless, all of us--regardless of background or ideology-- should have a right to our ideas, our privacy, and our political speech.

Wiretapping has long been allowed under US law, but only under strictly regulated circumstances. Probable cause that a crime had been or was about to be committed had to be shown and the approval of a judge obtained. A few years ago, these requirements were loosened to enable gathering of information regarding foreign terrorist organizations. A secret court was established that could approve such wiretaps without requiring the government to show evidence of criminal conduct.

This court's jurisdiction has now been expanded so that it could permit the FBI to secretly search homes and offices. The new law broadens these provisions to allow wiretaps and secret searches of homes in criminal cases -- not just to gather foreign intelligence. The law authorizes the court to permit roving wiretaps of any phones, computers or cell phones that might possibly be used by a suspect. Widespread reading of e-mail is allowed, even before the recipient opens it. As Michael Ratner of the Center for Constitutional Rights puts it, "Thousands of conversations will be listened to or read that have nothing to do with the suspect or any crime."

In addition, the new law permits mandatory and indefinite detention of aliens certified by the Attorney General as "suspected terrorists." As Ratner points out, these could include "aliens involved in barroom brawls or those who have provided only humanitarian assistance to organizations disfavored by the United States." The President will allow government agents to listen in on suspects' conversations with their own attorneys and has authorized secret military tribunals to hear some of these cases.

I would not trust John Ashcroft-- or any Attorney General-- with discretionary authority to detain aliens indefinitely or to authorize surveillance and possible prosecution of citizens based on tenuous affiliation with organizations he deems dangerous. The FBI is already investigating groups it claims are linked to terrorism -- among them pacifist groups like the U.S. chapter of Women in Black, which holds vigils to protest violence in Israel and the Palestinian Territories. In actions reminiscent of Vietnam-era surveillance, the FBI has threatened to force members of Women in Black to either talk about their group or go to jail. As one of the group's members said, "If the FBI ... will not distinguish between groups who collude in hatred and terrorism and peace activists who struggle in the full light of day against all forms of terrorism we are in serious trouble."

Neither Ashcroft nor Bush has offered any convincing rationale that such powers would have been necessary or even useful in preventing the events of September 11. The Ashcroft agenda distracts Congress and much of the public from our "Intelligence Community's" already obvious failings. Cumbersome, ill-informed and turf-conscious bureaucracies misread the warnings they receive and fail to disseminate them to the proper authorities.

Worse still, the Bush Administration's Constitutional coup is only likely to increase the risk of terrorism. Conventionally, civil libertarians discuss civil liberties in the abstract. What limitations may appropriately be imposed on the average citizen for the sake of common safety? But civil liberties are defined and enforced in a world with substantial economic inequalities and ethnic injustices. The distinguished Middle Eastern scholar, Edward Said, has properly characterized this world as one where "The greatest single fact of the last three decades has been human migration attendant upon war, colonialism and decolonization, economic and political revolution. Exiles, emigres, refugees, and expatriates must make do in new surroundings, and the creativity as well as sadness that can be seen in what they do is one of the experiences that has still to find its chroniclers."

One part of the backdrop of this experience is US foreign and domestic "anti-terrorist" policy. The Justice Department's manhunt for terrorists has swept up about a thousand individuals almost all of whom are of Middle Eastern origin. They have been detained for many days, generally without charges. Thus far, few have been shown to have any connection to the crime and most appear to have been detained for nothing more serious than an expired visa.

The Administration's bombing campaign is defended on the ground that only military facilities and personnel are targeted. Nonetheless, that strategy also has many innocent victims. It has wounded or killed many civilians and left many more vulnerable to starvation. Administration acknowledgment that such victims are inevitable if unintended byproduct of war leaves many in the Arab world wondering how substantial the difference is between terrorists who target civilians and governments that pursue strategies that have an inevitable-- albeit unintended --effect of killing the innocent. Yet the pressure by US leaders to keep these concerns widely expressed in Arab media off US television limit our citizens' access to important Middle Eastern debates and concerns.

The Bush Administration tells us that this is an unconventional war that must be fought across borders. It seeks to assure the rest of the world that it is not a war against Islam. But here at home even more blatantly than abroad, the tools of war hark back to the worst moments in our heritage. Apparent ethnic background becomes immediate grounds for suspicion and, worse still, those treated as suspicious are denied the most minimal civil liberties.

If terrorism must be fought--as I think it must--through collaborative international intelligence and ultimately through widespread domestic respect for minimal human rights standards worldwide, blatant denial of civil liberties to populations marginalized here at home and under attack abroad are self-defeating. In the current climate, one would have to excuse any man of Middle Eastern origins for reluctance to cooperate with US authorities. And a political and legal climate that makes it hard to raise such concerns only adds to the dangers we face.