Taking Liberties

Politics and policy.
Nov. 28 2001 6:50 PM

Taking Liberties

John Ashcroft

We've heard two dominant reactions to the Bush's administration's legal steps to fight terrorism at home. The first is the hue and cry of civil libertarians who declare such measures inimical to our constitutional freedoms and privacy. The second is the equally automatic tendency of many conservatives to remind us that civil liberties necessarily suffer in wartime and to justify whatever Attorney General John Ashcroft wants. Perhaps the only interesting thing about the argument thus far has been its mild strange-bedfellow aspect. A band of right-wing libertarians objects to some proposals more strongly than do liberal Democrats in Congress and the ACLU.

Jacob  Weisberg Jacob Weisberg

Jacob Weisberg is chairman and editor-in-chief of The Slate Group and author of The Bush Tragedy. Follow him on Twitter.

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This rather sterile debate, largely familiar from before Sept. 11, provides little guidance to those prepared to re-examine the balance our society strikes between freedom and security but disinclined to tip the scale more than we need to. If American history teaches us that freedom often suffers in wartime, it also teaches that it often suffers gratuitously. Military censorship during World War II was sensible and justified; imprisoning American citizens of Japanese descent was neither. The former action was reasonably tailored to deal with a genuine security risk. The latter was a hysterical and xenophobic overreaction. Which category do the various actions of the Bush administration fall into? I see no alternative to evaluating the six biggest, one at a time.

1. The continuing detention of more than 600 foreign nationals on immigration charges.

Official Justification: John Ashcroft, the attorney general, says that the detainees, who previously numbered more than 1,000, include al-Qaida members and that arrests have probably stopped additional terrorist attacks. The attorney general has also attempted to defend his decision to withhold information about the suspects. On Nov. 26, Ashcroft said that to give out their names would violate their privacy and create a "blacklist." On Nov. 27, he announced federal charges against 104 detainees. Releasing the names of the 548 others, he asserted, would aid Osama Bin Laden.

Discussion: Foreigners who violate the terms of their visas can be legally held without a bail hearing or even formal charges because they're noncitizens with minimal rights under the Constitution. But Ashcroft's excuses for not revealing the names of the detainees are transparent. The giveaway is his sudden solicitousness for a privacy right that doesn't even exist as a legal matter and his subsequent move to the stronger "aiding Bin Laden" justification. If he's so concerned about the privacy of detainees, why not at least ask them if they want their names withheld and release those who don't mind? As for tipping off al-Qaida, the detainees do have a right to counsel, and their lawyers can contact friends or family members or announce through the press that they're being held.

Why is release of the names such a big issue? Because without more information about the suspects, it's impossible to know whether the detentions are reasonable or not. Press reports about of some of the detainees are cause for concern. For example, the New York Times has reported that as many 11 harmless-sounding Israelis were held for several weeks. Given the circumstances, Justice can be forgiven for erring on the side of caution in releasing people it believes to be dangerous. But absent more disclosure, there's no way for Congress, the press, or the public to assess what Ashcroft is doing.

Verdict: Mixed. When it comes to detaining foreigners who are suspected terrorists and terrorist-helpers, we have no choice but to trust the Justice Department and the INS to some extent. But Ashcroft's superfluous secrecy requires us to take more on faith than we should have to.

2. The U.S.A. Patriot Act, signed by President Bush on Oct. 26, which grants the government broader powers to wiretap and detain noncitizen suspects, to conduct secret searches in which a target is not notified, and to share intelligence among agencies.

Justification: As Bush said at the signing ceremony, the bill "takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike."

Discussion: The bill has many components, all of which give the executive branch more power. On electronic surveillance, for example, it prescribes treatment for Internet wiretaps parallel to existing law on telephone communications. Another provision gives the CIA greater latitude to gather intelligence within the United States. How you feel about this stuff depends on whether you lose sleep over law enforcement authorities having too much power or not enough. Though the specifics are too many and too specific to go into here, I think advocates of the bill make a strong case that it makes life easier for law enforcement in prudent, measured ways. The final legislation was developed through bipartisan compromise, which added, among other things, a sunset provision that will cause provisions to expire in four years unless Congress acts to renew them.