“We’re likely to experience more restrictions on personal freedom than has ever been the case in our country,” Supreme Court Justice Sandra Day O’Connor grimly warned a group of NYU law students after visiting the mangled tomb that was once the World Trade Center. O’Connor’s calm acceptance of the proposition that the terrorism crisis means unprecedented incursions on civil liberty–which, given her position on the Court, puts her in a position to be a self-fulfilling prophet–sounds extreme. But it’s a prediction firmly grounded in the aspirations of the Bush White House. In contrast to the deliberation that has, so far at least, marked the Administration’s military response to the WTC/Pentagon conspiracy, Attorney General John Ashcroft rushed to Capitol Hill with a hodgepodge of legislation to grant the FBI, INS and federal prosecutors powers to spy, jail and interrogate far greater than in any past war or national emergency.
In the days after September 11 it seemed a sure wager that Ashcroft’s plan would pass Congress as swiftly as the Pearl Harbor war declaration. G-men would be out with a virtually unlimited license to detain immigrants and round up e-mail. The surprising thing is that for weeks, Congress forcefully resisted the Administration’s proposals. By early October Ashcroft was fuming over a House compromise limiting the scope of his most coercive measures. In the Senate, Judiciary Committee chairman Patrick Leahy stood his ground so stubbornly that finally the White House pressured majority leader Tom Daschle into telling Leahy he would bring the bill to the floor without Judiciary approval. Leahy’s committee finally voted a compromise bill of its own–in some respects weaker than the House version. By the end of the first week in October both the House and Senate bills were headed for floor votes, though there was still the possibility of some amendments. Why Ashcroft’s plan was greeted with such reluctance, and the considerable dangers that still remain, are crucial to understanding what remains a uniquely perilous moment for the Bill of Rights.
Within hours of the Twin Towers’ collapse, federal officials were already declaring that the war on terrorism would require new powers. In fact, they were mainly not new powers, but easements the FBI and federal prosecutors have sought for years: cutting judges’ review of wiretap orders, opening access to supposedly secret grand jury evidence, detaining undocumented immigrants indefinitely and without appeal. Each year since the Oklahoma City bombing of 1995, Congress has rejected such plans. But the World Trade Center conspiracy seemed, at first, to change the political calculus–a notion with history very much on its side, a series of panics over foreign conspiracy going back to 1798, when whiffs of French revolutionism overwhelmed John Adams’s Federalists, who responded by jailing newspaper editors and throwing out immigrants.
For civil libertarians, the political risk was all the greater because this is no imaginary conspiracy. The September 11 attack was murderous, the threat of future violence significant. Civil libertarians cannot casually dismiss the shocked public’s hunger for security. Thus the ACLU calls its campaign against Ashcroft’s package “Safe and Free,” and director Anthony Romero praises Bush Administration plans to require hardened doors in aircraft cockpits; Ralph Neas, president of People For the American Way, calls for “acting appropriately to prevent future such attacks.”
But what is “acting appropriately”? Regardless of the final legislation that passes Congress, Attorney General Ashcroft’s initial answer–that sweeping law-enforcement wish list covering everything from credit reports to education records–is worth reviewing for what it reveals about the Administration’s priorities. Take immigration, for instance. Within days of the World Trade Center and Pentagon attacks, President Bush won plaudits from Muslim-American groups for speaking clearly and loudly against harassment. Bush visited a mosque, and Ashcroft directed the FBI to treat harassment as a hate crime. At the same moment as these symbolic gestures, though, Ashcroft was moving his proposal that would substantively and vastly erode the rights of all immigrants–and, under the current political circumstances, Muslims in particular. After the Oklahoma City bombing, Congress created secret terrorism courts for foreign “terrorist suspects.” Ashcroft’s new plan goes a step further, skipping the trial altogether: He wants the right to detain foreign “terrorist suspects” indefinitely, with appeal possible only when a suspect faces deportation. “These actions offend the Constitution,” says the ACLU’s Romero, “and are an affront to millions of law-abiding immigrants in our country as well as millions of other citizens who are the sons and daughters of immigrants.”