First Amendment advocates fear erosion of rights in aftermath of attacks

Friday, September 14, 2001

In the aftermath of the worst terrorist attack in America, First Amendment proponents expect and fear that the nation’s heightened national security concerns will soon overpower some of its basic freedoms.

The drumroll in that direction has grown louder each day since chaos descended on New York and Washington, D.C., on Sept. 11:

  • Only hours after the attacks, the FBI reportedly began installing its controversial Carnivore system at some Internet providers to monitor and record electronic communications, particularly seeking accounts with Arabic names. On the day of the attacks, an ABC-Washington Post poll found that 66% of Americans would willingly give up some civil liberties to combat terrorism.
  • On Sept. 12, Defense Secretary Donald Rumsfeld publicly cautioned that divulging classified intelligence could hinder the government’s efforts to track down those responsible and could put military personnel at risk. His remarks heightened expectation that the “classified leaks” bill, which would criminalize intelligence leaks, could be swiftly revived after being shelved only last week.
  • On Sept. 12, Vermont’s governor, Howard Dean, said at a news conference that the crisis would require “a re-evaluation of the importance of some of our specific civil liberties.”
  • The U.S. Senate approved legislation yesterday that would make it easier for the FBI to obtain warrants for electronic eavesdropping. And Sen. Jon Kyl, R-Ariz., saying that civil libertarians in the past had blocked legislation essential in a terrorism fight, vowed to push for laws to make search and surveillance easier in domestic intelligence-gathering efforts.
  • Also yesterday, House Democratic Leader Richard Gephardt, D-Mo., echoing earlier remarks by Senate Minority Leader Trent Lott, R-Miss., warned that an erosion of civil liberties would be inevitable. “We’re in a new world where we have to rebalance freedom and security,” he said, according to The Washington Post.

None of this surprises those interviewed by over the past two days, but it does very much concern them.

“It’s the beginning of a different epoch. It’s a conceptual shift in the way government and First Amendment freedoms interact,” said Scott Armstrong, an award-winning journalist formerly with The Washington Post and author in Washington, D.C. “We are now in a period where civil liberties get put to the side while we fight this war against terrorism. And since it is a war of ideas, it has all of the problems one would associate with a war against ideas.”

Morton Halperin, senior fellow for the Council on Foreign Relations in Washington, added, “Washington is a town with people with solutions looking for problems. Just as after Oklahoma City, every law enforcement and intelligence agency will pull out every proposal they ever made and say that because we were not given this authority we could not get good intelligence.”

Declan McCullagh, the Washington bureau chief for Wired News, who reported the initial FBI moves, took that one step further. “During a crisis, politicians often overreact. Wars and terrorist attacks can lead to bad laws and fresh assaults on the First Amendment,” he said.

“At one level, it’s understandable and natural,” McCullagh added. “Government officials strongly desire a society without dissenting views, and politicians have few tools at their disposal other than laws to achieve this goal. But at another level, restricting free expression is a terrible mistake. It does violence not to terrorists, but to the principles of a free society.”

McCullagh’s comments were echoed on the floor of the Senate yesterday by the chairman of the Senate Judiciary Committee, Patrick Leahy, D-Vt., who appealed for caution as the debates on retaliation got under way.

“We have to be careful, that in our emotion in the midst of this murderous, horrible act, … we don’t start taking away the very freedoms that make us different from terrorists,” Leahy said.

Robert O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression, in Charlottesville, Va., put that another way: “The dilemma is balancing, on one hand, the undoubted need for better and more sophisticated intelligence gathering, against the imperative to preserve civil liberties despite the heightened threats of terrorism.”

“Senator (Bob) Graham seemed to capture in his statement [Sept. 12] precisely the proper theme — that if we sacrifice basic rights and liberties for security, then the terrorists will truly have prevailed.”

Even as they acknowledge that the enormity of this disaster makes for an extraordinary time, free-expression proponents also anticipate a long and difficult struggle to keep First Amendment rights in focus.

Halperin predicted that “we will hear calls in the next few days for Congress to enact sweeping legislation” on terrorism. “This will include not only the secrecy provision but also broad authority to conduct electronic and other surveillance and to investigate political groups,” he said.

O’Neil predicts action on “potential threats that were simmering before Tuesday and on which the heat may now be turned up, especially in view of Senator Lott’s comment about civil liberties at risk in time of war.”

Those include, he said, possible revival of the “classified leaks” bill, renewed interest in installing Carnivore-like devices and “maybe a new round of Clipper Chip,” the encryption technology for digital telephones developed secretly with a “back door” key by the National Security Agency in 1993.

“I would expect renewal of the efforts of a couple of years ago to restrict U.S. fund-raising by any group which in any way supports unlawful activity abroad,” he added. O’Neil was referring to an issue Georgetown law professor David Cole argued before the Supreme Court after the 1996 federal anti-terrorism law was passed in the aftermath of the Oklahoma City bombing.

And Armstrong, who has been a key figure in efforts to derail the “classified-leaks” bill, sees an even bleaker impact on the news media.

“Terrorism is a concept … a series of ideas,” he said. “The concern we have in the media [is that] as we demand information, we’ll be accused of being subversive” for the very process of interviewing, associating with or learning about those who would explain terrorism.

“The person who has their First Amendment credentials — The New York Times, The Washington Post — around their neck is probably OK,” he added. But someone seeking information and asking questions for a book or a free-lance article, for example, “will be guilty by association,” Armstrong said. “It becomes very insidious.”

“What happens when reporters start asking about that intelligence failure … asking for proof that the people targeted are the right people? Somewhere in there, it’s going to be considered disloyal.”

There is no easy solution to any of this, for as Armstrong said, “No one wants the terrorism we’ve just seen.”

But civil liberties groups are already beginning to gather their forces, the Los Angeles Times reported. The American Civil Liberties Union of Northern California has started a telephone hotline to monitor violations of civil liberties, particularly racial profiling. And the Lawyers’ Committee for Civil Rights was meeting today in San Francisco to discuss the risks to civil liberties and plan a possible response.

What is urgently needed, O’Neil said, is a method that will heighten security without crippling civil liberties.

“We may resent long waits and multiple screening of all passengers at airports, but (we) would much prefer such measures to hidden cameras or microphones or racial profiling, which might make access easier for some passengers but ultimately would place all at greater risk,” he said.

And Halperin cautioned, “We need to consider proposals calmly and deliberately with a determination not to take away the liberties and freedoms which are at the core of the American way of life.

“We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty,” he said.

The lessons of history, O’Neil added, should never be forgotten.

“In previous times of great national tension, government has felt both compelled to, and has seemed justified in, abridging certain basic liberties: suspending habeas corpus during the Civil War, suppressing public dissent during World War I, interning most persons of Japanese ancestry during World War II, and suppressing protest during the Vietnam era,” he said.

But, he added, “Reflection after the end of hostilities has usually included recognition that such drastic measures, though seemingly necessary, were not worth the price they exacted of our deepest national values.”

Years after the Supreme Court had sustained the Japanese internment, O’Neil noted, “Justice Hugo Black expressed profound regret for his concurrence (and) indeed authorship of one of the key opinions.

“The lessons of such retrospection and regret counsel caution at so perilous a time as this,” O’Neil said.

Such reasoned discussion was punctuated sharply yesterday by the reaction to Vermont Gov. Howard Dean’s remarks of Sept. 12.

In a news conference, Dean said: “I think there are going to be debates about what can be said where, what can be printed where, what kind of freedom of movement people have and whether it’s OK for a policeman to ask for your ID just because you’re walking down the street.”

Amid the shocked reactions to Dean’s comments by civil libertarians, one strong voice emerged. Benson D. Scotch, director of the Vermont chapter of the ACLU, said his organization would be very much involved if any of the debates Dean called for come to pass. But, he added, now is not the time.

“We’re at a moment now of extreme tragedy and sorrow and anger. And tragedy and sorrow and anger are not good qualities to inform a debate about civil liberties,” he said.

The Associated Press contributed to this report.

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