Here's hoping that Ehrlich is right on habeas corpus

October 20, 2001|By Gregory Kane

"ABSOLUTELY not," Rep. Robert Ehrlich of Maryland's 2nd Congressional District said late Thursday. "I think it's sacrosanct."

He was talking about suspending habeas corpus, which some Americans have pondered in the wake of the Sept. 11 terrorist attacks on our nation. Article I, Section 9 of the Constitution allows suspending habeas corpus. But Congress still won't do it. They've even gone so far as to tone down a proposed anti-terrorism bill.

"Given the liberalization that's taken place with this [anti-terrorism] bill," Ehrlich continued, "no one's even brought it up." Even with a new wave of terrorist attacks, Ehrlich said, no one in Congress is going to bring up the subject of suspending habeas corpus, which, stripped of legalese, means the government has to go before a court and say why it's holding suspects.

The "liberalization" Ehrlich referred to is the scaled-back version of the anti-terrorism bill. Members of the House Judiciary Committee were able to reach a compromise about it. What, exactly, was this compromise?

"It was a compromise between the kitchen sink that the FBI and the attorney general [John Ashcroft] came in with and the civil liberties-sensitive members of the Judiciary Committee," Ehrlich answered.

That civil liberties sensitivity was bipartisan. Both liberal Democrats and conservative Republicans expressed misgivings about handing unprecedented power to the federal government's executive branch. Ashcroft and the FBI asked for the authority to detain suspects indefinitely and to expand wiretapping authority, among other things.

"The indefinite detention was the most controversial feature," Ehrlich said of the Bush administration's proposals. The compromise allows for suspects to be held for seven days. If they haven't been charged, they must be released.

"There's nothing magic about seven days," Ehrlich said. "In America, indefinite detention raises suspicions. It's always a danger in a free society. I can live with seven days."

Interesting expression, the one about "living with seven days." It goes to the heart of this debate in which Americans seek to strike a balance between the rights of the individual and the rights of society. What Americans face is not a choice between freedom and safety. (No American worth his or her salt would ever trade freedom for safety.)

This is about giving up some freedoms, temporarily, to ensure our survival. It's a life-or-death situation we face. I can sympathize with Congress for not wanting to suspend habeas corpus. It's something we really shouldn't want to do.

But those men who landed on Omaha Beach on June 6, 1944, didn't want to do that either. The Marines who landed on Iwo Jima eight months later didn't want to do that. Those brave men put their lives and limbs in harm's way to defeat Nazi tyranny and Japanese imperialism. They did what they had to do.

The battle against terrorism is not one that will determine whether we remain a free society. It's to determine whether we'll be a society at all. Congress, for the moment, sees no need for suspension of habeas corpus. We can only hope that the future proves it right and that its stand to protect our freedoms is a wise one.

"This is not a wholesale suspension of civil liberties," Ehrlich said of the anti-terrorism bill, adding that some representatives also objected to Ashcroft's request for administrative search warrants, which don't require going before a judge.

"Administrative search warrants are something civil libertarians are very sensitive about," the congressman continued. "The concept of administrative search warrants raises the hair on the back of your neck - and it should."

What didn't exactly make Ehrlich's hair stand on end was the anthrax scare in Congress this week.

"My staff was not particularly fearful," Ehrlich said. "No one on the staffs of any of my friends was fearful. There were no known exposures on the House side. But it does make some sense to establish a base line - to swab everything and clear it out."

House members weren't scheduled to go in yesterday, and their next session is Monday night.

Spreading anthrax spores doesn't jibe with the style of the terrorists who hit the World Trade Center twin towers and the Pentagon Sept. 11. They like to kill and kill big. So far, only one person has died of anthrax exposure. The anthrax scare just might be a diversion so the terrorists can get us looking for one thing while they hit with something else. Does Ehrlich consider that a possibility?

"Absolutely yes," he answered. "Anthrax is certainly not good, but there's heavier stuff out there. We suspect there's serious capability with these folks."

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