War and Liberty: Protecting Civil Liberties in this Time of Crisis

Even as we grieve for those whose lives were cut short by the tragic events of September 11, Congress' hasty approval of anti-terrorism legislation indicates that our nation is destined to repeat the mistakes of the past: abandoning the cherished values enshrined in the Bill of Rights.

Even as we share the desire to protect our families from violence, civil libertarians have been presented with extraordinary challenges. We must protect Arab Americans, Muslims and South Asians from hate crimes and racial profiling. And we must balance the need for greater security with the need for freedom.

The ACLU was bitterly disappointed when, despite the efforts of allied organizations and tens of thousands of supporters, we failed to prevent federal anti-terrorism legislation from passing. We were disappointed not because we oppose reasonable efforts to improve national security, but because this legislation fails to strike a crucial balance between safety and liberty.

This legislation is filled with measures that expand intelligence agencies' powers to wiretap, spy, infiltrate, conduct covert searches, and detain and deport immigrants.

As Laura Murphy, Director of the ACLU Washington Office noted, "This bill has simply missed the mark of maximizing security and, at the same time, minimizing any adverse effects on America's freedoms.

"Most Americans do not recognize that Congress has just passed a bill that gives the government expanded power to invade our privacy, imprison people without due process and punish dissent," Murphy added.

This is consistent with the least glorious moments of our history. Immigrants, minorities and dissenters have been isolated and punished during numerous crises: from mass deportations during the Palmer raids of the 1920's to the internment of Japanese Americans during World War II, or the bombing of the Oklahoma City federal building, when Arab Americans were detained and searched. At times of conflict, basic rights and liberties have crumbled before the demand that the government may use any means necessary to make us feel safe.

In some ways, the climate is different today. Elected officials, including the President of the United States, have spoken out consistently against scapegoating. Powerful voices condemning such intolerance was non-existent in the past: political leaders were often at the forefront of efforts to deprive immigrants and other minorities of their rights, and led others to commit hate crimes, with the imprisonment of Japanese Americans being the most prominent and disturbing example.

The ACLU of Northern California stood virtually alone as we challenged the internment of 120,000 Americans of Japanese descent. Today, countless organizations and individuals would join us to resist such an act.

In fact just days after the September 11 tragedy, the ACLU-NC held a press conference to provide a forum for legal and civil rights groups to announce nearly a dozen hotlines and other services that had been immediately initiated in response to the crises.

Racial Profiling
Yet messages of tolerance often go unheard when the streets, especially outside of the immediate Bay Area, seem to be filled with feelings of rage and vengeance. Indeed, hundreds of reports of hate crimes and harassment and even murders have occurred in California since the events of September 11. The victims - Muslims, Arab Americans, Sikhs, South Asians, Latinos and others perceived to be Middle Eastern -- have felt the sting both of private acts of violence, as well as more official forms of prejudice, especially as result of racial profiling.

Here again, ACLU's work during the past three years on the issue of racial profiling has raised consciousness, and clearly has made public officials question whether racial profiling policies - whether at airports or at other public venues are consistent with the principles of a nation dedicated to treating all citizens equally. Nevertheless, even racial profiling -- which when exposed had clearly been condemned by the public and public officials -- is now seen as a necessary evil during such extraordinary time.

Technology - in the Name of National Security
If twenty-first century America is a more diverse and tolerant place, it is also a culture transformed by advances in technology. The Internet enables the ACLU to activate thousands of supporters at the push of a button. It also allows for an unprecedented national conversation during this time of mourning, via web sites that host a robust First Amendment forum.

Yet this same tool will also enable our government to invade our privacy in unprecedented ways. The new legislation gives unfettered authority to law enforcement to investigate suspects by monitoring conversations and information on the Internet.

Compounding this threat to privacy are proposals from some commercial interests. Larry Ellison, CEO of Oracle, recently offered to donate software to provide a national identification card for every American. When asked how he would explain this to the ACLU he answered: "the right to privacy was an illusion anyway."

Weeks before September 11, a majority of Americans indicated that privacy was a significant issue. They were alarmed by annual government reports that nearly two million innocent phone conversations were wiretapped by law enforcement. Yet the new law will vastly expand law enforcement's powers to wiretap phones as well as the Internet. In the new climate, loss of privacy seems to be viewed as the cost of doing business at a time of crisis.

We should never forget the historical abuses that have taken place in the name of national security. The government has illegally watched and investigated law-abiding citizens and immigrants and branded people who disagree with government policies as enemies. The new law will unleash the intelligence agencies and is all the more dangerous given the new technological tools at the government's disposal.

Some Americans may take comfort in the belief that their liberties will not be violated. After all, few of us anticipate becoming suspects in a terrorist investigation. Unfortunately, the millions of Muslims and Arab Americans living in the United States cannot be so sanguine. Immigrants and citizens of Arab descent face an increased risk of being branded disloyal and losing their liberties, which has happened to other minority groups during past national crises.

Indeed, other equally ominous powers were approved by Congress, including the possibility that immigrants could be jailed and deported without trial, or even an opportunity to establish their innocence. While these tactics are being justified as a response to a national emergency, these rules could become a permanent part of our immigration laws.

Patriotism should not be defined by acquiescence to government power, but rather should be inspired by rising to defend civil liberties at this time of crisis. We seek safety, but not by any means necessary.