War on terror mustn’t be waged at Constitution’s expense

Sunday, March 16, 2003

A warning sign now greets patrons entering all 10 of the county libraries in Santa Cruz, Calif. Beware, a record of the books you borrow may end up in the hands of the FBI. And if the FBI requests your record, librarians are prohibited by law from telling you about it.

If you’re startled by this, you aren’t alone. How many Americans — including the lawmakers who voted for it — actually read the fine print when Congress passed the hastily drafted USA Patriot Act in the aftermath of the Sept. 11, 2001 terrorist attacks? Our attention was (understandably) elsewhere.

Making it easier for the FBI to get library and bookstore records is just one obscure provision in the more than 300 pages of a sweeping law giving the government broad new search and surveillance authority.

While we’re still learning about the contents of Patriot Act I (and trying to figure out how much of it is constitutional), along comes the Domestic Security Enhancement Act, dubbed Patriot Act II by the news media. Last month a Justice Department draft of this bill was leaked to the Center for Public Integrity, intensifying the debate about current threats to civil liberties in the United States.

What’s new in Patriot Act II? Among other things, the government would have expanded powers to create a DNA database of people not convicted of a crime, conduct wiretaps and searches under the authority of a secret court (and, in some circumstances, without any warrant), access credit reports, further restrict access to information about government actions, and reduce limits on police spying. (A full draft of the bill may be found at www.publicintegrity.org.)

When this bill — or some version of it — comes before Congress, Attorney General John Ashcroft will make the case for further untying the government’s hands to fight the war on terrorism. And given the very real threats we face at home and abroad, it might prove to be a winning argument on Capitol Hill.

But here’s the danger. Many of the provisions in Patriot II would authorize new government powers without adequate safeguards — and, in some cases, without limiting the powers to terrorism investigations. Current restrictions on police spying, for example, were put in place to prevent persecution of innocent people based on their religious or political affiliations. Lifting those restrictions will undoubtedly stifle dissent by making Americans afraid to join protests or speak out against government policies.

Of course, as every schoolchild knows (or should know), this isn’t the first time the American government has over-reached in wartime. From the Sedition Act of 1798 to the internment of Japanese-Americans during World War II, U.S. history is replete with examples of excessive government restrictions on constitutional freedoms in times of crisis.

Even Abraham Lincoln — the great defender of the Constitution — asserted broad war powers to limit First Amendment rights, suspend the writ of habeas corpus and otherwise restrict freedom in order to preserve the Union. “By general law,” Lincoln wrote to a newspaper editor in 1864, “life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.”

President Lincoln had a point. Few Americans would disagree that extraordinary threats to our nation may require extraordinary measures to defend it. And most of us recognize that some temporary limits on freedom may be necessary to pursue and destroy terrorist networks and to prevent future attacks.

But most historians now agree that Lincoln — as well as presidents before and after him — went much too far. War can be fought, even this new kind of war, without sacrificing the checks and balances that uphold basic constitutional rights. That requires open and full debate (not secretly drafted legislation) on just what the government needs to fight this war — and what safeguards must be in place to protect our freedoms.

Since the fight against terrorism appears unending, new powers granted to the government today may become permanent tomorrow. History teaches that once given, sweeping powers of search and surveillance will be difficult to take back. And once employed to combat an immediate threat, such powers may be subsequently used in unanticipated ways to suppress legitimate dissent.

Fortunately, exposure has probably put the brakes on Patriot Act II (be grateful for the power of a free press). When and if the bill reaches Congress, it’s unlikely to sail through unread this time around.

Can we win the battle against terrorism without dismantling the Constitution? For the sake of democratic freedom — at home and abroad — we must.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: chaynes@freedomforum.org