From The Right: Civil Liberties in a Post 9/11 World

From The Right:

Civil Liberties in a Post 9/11 World

 

By Harris R. Sherline

 

Are the civil liberties of American citizens really under assault in the name of protecting us?  Many people think so.  But, the question is, or should be, which of our liberties are being abridged and to what degree?

The term “civil liberties” covers a wide range of conduct, including those protections that are part of our all important “Bill of Rights,” which comprise the first ten amendments to the Constitution. Among other rights, they include freedom of speech, due process, (the right to a fair trial), and the right to bear arms.

 

Since the passage of the USA Patriot Act, there has been a continuous clamor to change or repeal it on the grounds that it violates the rights that are guaranteed to us by our Constitution.  No doubt some of these liberties have been curtailed, but are these restrictions depriving us of our Constitutional rights?

 

The importance of our constitutionally guaranteed freedoms cannot be overemphasized.  For example, freedom of speech is not just about the right to complain.  It also serves the very critical function of providing an outlet for the pressure of public opinion before it morphs into violence or, worse yet, revolt.  It doesn’t always work that way, but it’s a critical component of the freedoms that we all enjoy as American citizens.

 

That said, the question remains, how much has the Patriot Act restricted or abridged our freedoms as Americans?  Here’s a brief summary of the various rights that are specifically guaranteed by our revered Bill of Rights:

 

·         Freedom of speech and the press

·         The right to assemble and to petition the government for redress of grievances

·         The right to keep and bear arms

·         Protection against unreasonable searches and seizures

·         The requirement that a grand jury indictment must be obtained

·         Protection from self-incrimination (5th Amendment)

·         Protection from being tried twice for the same crime (Double Jeopardy)

·         Protection from the government’s taking of private property without just compensation (eminent domain)

·         The right to a speedy and public trial.

·         Trial by jury

·         Excessive bail shall not be required.

·         The states retain all rights not specifically “delegated” to the federal government (10th Amendment).

 

A cursory reading of the Bill of Rights suggests, in general, that these basic rights have not been abridged by the U.S. Patriot Act.  But, according to an Associated Press article (December 2002), the government has used the Act to change our legal rights in the following ways:

 

·         “Government may monitor religious and political institutions without suspecting criminal activity to assist terror investigation.”

·         “Government has closed once-public immigration hearings, has secretly detained hundreds of people without charges, and has encouraged bureaucrats to resist public records requests.”

·         “Government may prosecute librarians or keepers of any records if they tell anyone that the government subpoenaed information related to a terror investigation.”

·         Government may monitor federal prison jailhouse conversations between attorneys and clients, and deny lawyers to Americans accused of crimes.”

·         “Government may search and seize Americans’ papers and effects without probable cause to assist terror investigation.”

·         “Government may jail Americans indefinitely without a trial.”

·         “Americans may be jailed without being charged or being able to confront witnesses against them.”

 

In the years since 2002, a number of high profile incidents have highlighted various potential problems with the Patriot Act, such as the government mining email transmissions from outside the U.S. to suspected terrorists in the states and tracking the use of libraries.  In June 2007, the Washington Post reported, “An internal FBI audit found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, emails and financial transactions in recent years…”

 

Recognizing the possibility that certain of our rights are now being abridged, here are a few questions we might ask ourselves:

 

·         How far reaching are the freedoms that are guaranteed by the Bill of Rights?  In other words, are the various freedoms enumerated in the Bill of Rights unlimited?  Does freedom of speech give us the right to say anything we want at any time or were there already certain limits prior to 9-11?  For example, the famous limitation that we do not have the right to shout “fire” in a crowded theater.  Or, the possibility that some speech may be considered treasonous?

·         Can or should we expect to have the same rights at a time of war as during peacetime?

·         Have civil liberties been suspended or curtailed at other times during our history?

 

In spite of the problems, it seems obvious that we must accept some diminution of the scope of certain freedoms in times of war.  During World War II, “Loose lips sink ships” was the slogan in a campaign to caution people that they should not talk about the war, especially where their loved ones in the service might be located, out of concern that it might help the enemy figure out where our troop movements were headed.  As far back as 2600 years ago, a Chinese warrior (Sun Tzu) observed, “All warfare is based on deception,” and that maxim is still as valid today as it was some six hundred years before the birth of Christ.

 

Many of the things people seem to think they have a right to do or disclose today would surely have been viewed as treasonous during WWII.  For example, in June 2006, the New York Times released classified information that exposed government monitoring of the banking records of suspected terrorist organizations.  At the time, the disclosure was justified with the usual argument that “the public has a right to know.”   But, there have always been limits on the public’s “right to know.”  As far as I’m concerned, the paper should have been prosecuted for divulging that information.

 

Applying the rationale of the NY Times further, does the public have the right to know anything or everything that’s classified?  How about information concerning individuals or groups who are actively plotting to commit acts of terrorism?  The group of six who were planning to attack the military at Fort Dix, New Jersey, comes to mind.  If the press had known about it, just what obligation or right would there have been to disclose that the group had been infiltrated by an individual who was helping the FBI monitor what they were doing, which ultimately led to their arrest?  Would it have been acceptable to disclose that information at the time the attack was being planned but before a strong case was assembled?

 

My bottom line is that we should not expect the same degree of freedom during a time of war.   To do so is naive at best and could be treasonous at worst.

 

I admit that sorting all this out, that is, providing reasonable ground rules for protecting ourselves from attack and safeguarding our cherished rights as American citizens at the same time is above my pay grade.  But, I am sure of one thing: We must learn to accept and live with some restrictions on our personal freedoms during times of war.  It doesn’t do much good to have unrestricted freedoms and lose them because they are used to help the very people who are trying to harm us. 

 

What bothers me most about all this is that those Americans who believe they should disclose classified information would be the first ones imprisoned or executed if we were to lose this war – a fact that seems to escape them.