Ruling aims at restoring balance in dealing with terror

Thursday, May 17, 2012

WASHINGTON — The terror attacks of Sept. 11, 2001, posed many issues for our nation as to how to respond, and what lengths to go to, in the name of national security.

In some cases, new safety rules have meant minor inconveniences. No bottles with more than three ounces of liquid allowed in carry-ons on an airplane, for example.

Some laws, more invasive, have provoked more than grumbling. Librarians, for instance, still oppose provisions in various anti-terrorist and national-security laws requiring that they track what we read and see in public libraries, and keep that information ready on demand for inquiring federal agencies.

In the realm of legal rights, the Supreme Court ruled last year in Holder v. Humanitarian Law Project that Americans may not provide training to groups the U.S. State Department lists as connected to terrorist operations. The Court said such activity, even if confined to benign operations — school or home construction or training in diplomacy — can be banned under the theory that a dollar not spent on such good works is a dollar available for bomb-making and the like.

And in movies, law reviews and congressional hearings, a debate has raged over the practice of “detention.” That’s the practice of holding indefinitely those linked to terrorist activity, without trial or even criminal charges. (Think Guantanamo.)

Much of that debate has focused on parts of the Bill of Rights dealing with fair trials, self-incrimination and due process. But a federal judge in Manhattan yesterday invoked the First Amendment’s protections of free speech and freedom of association to strike down part of a new law that she said went too far in legalizing such detentions.

U.S. District Judge Katherine Forrest, ruling in Hedges v. Obama, said a provision of the law permitting detention of U.S. citizens — which government lawyers declined to discuss in specifics — has a “chilling impact on First Amendment rights.”

She temporarily blocked enforcement of that part of the law, until further court rulings or a congressional repeal that is being discussed.

Forrest said the law gave the government authority to arrest those expressing views that “may be extreme and unpopular as measured against views of an average individual.” Such activity is “precisely what the First Amendment protects,” she wrote.

According to the Associated Press, the National Defense Authorization Act, signed into law in December, allowed for the indefinite detention of U.S. citizens suspected of terrorism. Forrest’s decision does not affect another part of the law that enables the United States to detain indefinitely members of terrorist organizations, and the judge said the government has other legal authority it can use to detain those who support terrorists, the AP reported.

There is no doubt that al-Qaida and the Taliban are intent on harming Americans, or that the public supports most efforts to safeguard national security.

But we need balance. We need to require — as we have throughout our history, with some lapses later corrected — that laws empowering the government to override First Amendment rights be absolutely necessary, be as limited as possible, and exist only as long as no other, less-intrusive mechanisms are possible.

While so different in so many ways from today’s cases, we as a nation allowed fear to justify the internment of Japanese-Americans during World War II on virtually no evidence that they threatened national security.

Even given the real threat we live with today, the rule of law — and our core freedoms — deserve better than what Judge Forrest called “vagueness (that) does not allow the average citizen, or even the government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope.”

Tags: , , ,