Enemy Aliens and American Freedoms (Page 4)

New Threats?

The Administration's final line of defense maintains that unprecedented risks warrant an unprecedented response. The availability of weapons of mass destruction, the relative ease of worldwide travel, communication and financial transfers, the willingness of our enemies to give their own lives for their cause and the existence of a conspiracy that would go to the previously unthinkable lengths illustrated on September 11 require a recalibration of the balance between liberty and security. It is hard to dispute that the world grows more dangerous every day. But that could also be said during World War II, where modern weapons inflicted far more severe damage than those employed in World War I, including a devastating surprise attack on US soil. It also appeared to be true during the cold war, when we were locked in battle not with a small band of terrorists but with the world's other superpower, armed with an enormous stockpile of nuclear, chemical and biological weapons.

Our experiences during World War II and the cold war teach us that whatever the magnitude of the threat, certain principles remain sacrosanct. First, we should hold people responsible for their own actions, not treat them as culpable based on their ethnic, political or religious identity. Insisting on individual culpability not only serves basic interests of fair play but focuses government investigators on the true perpetrators, avoiding the wasteful expenditure of resources on people who are guilty only by reason of their skin color or political ideology.

Second, the government should not be able to imprison people without a public accounting, reviewable in court, establishing that it has a sound legal basis for doing so. The mutually reinforcing checks of judicial review and public scrutiny, reflected in the ancient writ of habeas corpus and the constitutional right to a public trial, are essential to insuring that the innocent are not caught up as John Ashcroft's "suspected terrorists" or President Bush's "bad guys."

Third, we must insist on public accountability and oversight of law enforcement powers. Past abuses have often been shrouded in secrecy, only to be discovered and condemned years later, as when the Church Committee in 1975 revealed the excesses of the CIA and the FBI in the 1950s and '60s. The Bush Administration has sought to pursue this war under unprecedented secrecy, even refusing to divulge basic facts about its employment of new legislative measures to Congress.

Fourth, we should adopt only those measures that we are willing to have imposed on ourselves. Where everyone has an interest at stake, the political process is much more likely to strike an appropriate balance between liberty and security. Where we sacrifice the rights of some for the purported security of the majority, we violate our most basic constitutional commitments.

Finally, we must avoid repeating past mistakes. After a terrorist bomb exploded at the home of Attorney General A. Mitchell Palmer in 1919, the Justice Department responded by launching the Palmer Raids, in which thousands of immigrants across the country were rounded up and hundreds deported, not for their involvement in the bombing but for their political associations. Eighty years later, the Ashcroft Raids similarly arrested 1,500-2,000 people and deported hundreds--again, without netting anyone charged with the crime under investigation.

None of these principles are new. But the fact that they are old and that they have been forged over the course of many prior crises that also appeared to call for "new paradigms" should count in their favor, not against them. The attacks of September 11 were indeed unthinkable, and the anthrax scare that followed vividly underscored our postmodern vulnerability. But the Administration has yet to make the case that these threats justify compromising our fundamental principles of liberty and justice. In the area of human rights and civil liberties, what is needed is not a "new paradigm" but true conservatism. Only then will freedom endure this operation.

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