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Stealing America's Civil Liberties

By David M. Debartolo and Anthony S.A. Freinberg

Although the war to topple Saddam is winding down, the war on terror rumbles on. And while American forces won a rapid victory in Iraq, signs from the home front have been distinctly worrying. On Sept. 12, 2001, the U.S. began a war to safeguard the American way of life. Yet in spite of the military successes of the past year and a half, American values remain under attack—not only by al Qaeda, but also by our own government.

Civil liberties are the bedrock on which America was born, as the Founding Fathers realized in 1789 when they enshrined those fundamental protections in the Bill of Rights.

But today, U.S. citizens can be jailed indefinitely, without charge, if they are suspected of terrorism. The FBI can now investigate American citizens without probable cause of their involvement with a crime. And the mere accusation of being an “enemy combatant” is enough to land you in a Navy brig without access to a lawyer.

The Bill of Rights is unequivocal. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Yet the FBI now enjoys expanded power to search private homes and download information from a computer without notifying the occupant. The FBI can also demand access to personal records held by a third party, such as a University, without showing reasonable suspicion that the target individual was involved with a crime. These changes apply to all criminal investigations; they are not limited to cases of suspected terrorism.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” Yet Jose Padilla, an American citizen suspected of trying make a “dirty bomb,” was arrested in Chicago almost a year ago on secret evidence and declared an “enemy combatant.” He has yet to see an attorney or appear in court; no formal charges have been brought against him.

Politicians on both sides of the aisle have eagerly passed legislation that abrogates civil liberties with only a cursory glance at the consequences. One of the first sweeping assaults on freedom was the USA PATRIOT Act, which passed the Senate by a 98-1 vote on Oct. 26, 2001. Both Republicans and Democrats were complicit in supporting the bill as neither side was willing to appear soft on terrorism so soon after Sept. 11; little seems to have changed since then.

It is reasonable to expect some restrictions of civil liberties during a time of war, and some of the PATRIOT Act’s provisions are necessary to help law enforcement officials deal with changing technology. But America will never be able to declare victory in the war on terror; this conflict, unlike a conventional war, will never end in unconditional surrender. Any sacrifices we make will be permanent. As if to drive that point home, the government has recently been pushing to overturn the original four-year “sunset” limits on the PATRIOT Act’s most controversial provisions.

The government has argued that these infringements on civil liberties are narrow measures needed to combat terrorism and has assured the public that people will only be declared “enemy combatants” in legitimate cases of national security. But even if the government honors its pledge, it has exceeded its Constitutional authority—all Americans deserve the liberties afforded to them by the Bill of Rights, whether they are accused of terrorism or tax evasion.

Yet there is ample historical precedent to doubt that the government is willing or able to restrain itself from harassing its opponents. The era of unconditional trust in the government ended with Vietnam and Watergate; it was not so long ago that the FBI was spying on “suspicious” individuals like Martin Luther King Jr. and “communist-infiltrated” organizations like the Southern Christian Leadership Conference.

The FBI is currently combing the transcripts of foreign college students for suspicious courses (as if biology classes were a short step from bioterrorism). Police departments in New York and Colorado have been monitoring the activities of peacenik demonstrators, and only recently ended those programs under outside legal pressure. How long will it be before the FBI turns its eyes towards other groups unpopular with the incumbent administration? Under a future liberal president, could mainstream anti-abortion organizations find themselves investigated for ties to abortion clinic bombers?

But few people seem to have noticed the government’s power grab; the international aspects of the war on terror and the invasion of Iraq have monopolized America’s attention.

The media has been filled with pictures of American soldiers, not with detailed discussions about the ramifications of the PATRIOT Act. Very few commentators have felt the need to speak out about the theft of civil liberties. One of the exceptions is former New York Times columnist and Crimson executive Anthony Lewis ’48, who said at a recent Lowell House dinner, “If I were editing the editorial page of a newspaper, I’d write an editorial about it every single day.”

The curbing of civil liberties is not a new phenomenon. The Alien and Sedition Acts introduced by John Adams in 1798 almost entirely undermined the First Amendment’s guarantees of freedom of speech and of the press. “Unpatriotic activities”—broadly construed and ill-defined—were outlawed during the Civil War and World War I. Even World War II saw the internment of over 100,000 Japanese Americans. But all of those pieces of legislation died with the end of the conflict in question, and none lasted for longer than five years.

The war against terror is different. It will be, to use a phrase coined by John F. Kennedy ’40 in his 1960 Inaugural Address, “a long twilight struggle, year in and year out.” It is a war that will be impossible to conclusively win. But it is a war that it will be eminently possible to lose. And if America permanently forfeits its commitment to civil liberties, it will have lost, regardless of the fate of Osama bin Laden.

Responsibility for that defeat will not lie with al Qaeda and its terrorist brethren. It will not lie with the Bush Administration for its overzealous interpretation of executive power. It will not lie with the members of Congress who passed legislation to restrict civil liberties. It will lie squarely on the shoulders of America’s citizens who witnessed the erosion of the liberties on which their country was founded—and did nothing.

David M. DeBartolo ’03, a government concentrator in Lowell House, was editorial chair of The Crimson in 2002. Anthony S.A. Freinberg ’04, a history concentrator in Lowell House, is staff director of The Crimson.

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