No regrets on liberties

November 16, 2001|By Jules Witcover

WASHINGTON - Attorney General John Ashcroft's latest assaults on the Constitution in the name of the war on terrorism underscore why he had such a rough time winning Senate confirmation last winter.

For all his assurances that he would be a staunch defender of that hallowed document, his authorization of eavesdropping on conversations between suspected terrorists or associates and their lawyers is sending chills through the ranks of civil libertarians. The action not only runs roughshod over the client-attorney privilege, it's also silly. Who will sing when it's known Uncle Sam is listening?

Then there's the retention without charge or arrest of more than a thousand unidentified persons who may or may not have some information about terrorist activity but haven't coughed it up yet. Mr. Ashcroft has indicated that picking them up for jaywalking will do.

While he was never an admirer of one of his predecessors at the Justice Department, Robert F. Kennedy, Mr. Ashcroft has said he will treat suspected terrorists or those who know anything about them the way Kennedy treated Mafia suspects - cuff them for spitting on the sidewalk.

Now comes the plan to substitute military tribunals to try accused foreign nationals instead of the normal American judicial process that has served adequately in the past, as witnessed in the recent conviction of the 1993 World Trade Center bombers. Quoth Mr. Ashcroft: "It's important to understand that we are at war now."

But too many times in the past when the country has been at war, American governments have played fast and loose with the Constitution in the name of national security, and later had reason to regret it.

The late Supreme Court Justice William J. Brennan Jr., in a 1987 speech, spoke of "the shabby treatment civil liberties have received in the United States during times of war and perceived threats to its national security. After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along."

Brennan went on: "The sudden national fervor causes people to exaggerate the security risks posed by allowing individuals to exercise their civil liberties, and to become willing `temporarily' to sacrifice liberties as part of the war effort."

Brennan cited five historic cases to make his point: the Alien and Sedition Acts of 1798; Lincoln's suspension of the writ of habeas corpus during the Civil War; Wilson's Espionage Act of 1917; the internment of 120,00 Japanese-American citizens in World War II; and the Communist witch hunts of the McCarthy era.

In each case, Brennan wrote, the denunciations of these actions "came far too late to prevent civil liberties from being infringed, and provides little assurance that hysterical assessments of security risk will not carry the day in a future crisis." And he expressed the hope that they have "taught us to be suspicious of asserted security claims."

Brennan contended that because these claims have been "episodic" in our history - that is, years apart - "the lessons learned and the experience garnered have grown faint during the lapses between security crises. Prolonged and sustained exposure to the asserted security claims may be the only way in which a country can gain both the discipline necessary to examine asserted security risk critically and the expertise necessary to distinguish the bona fide from the bogus."

But the fact is that each security crisis inevitably is viewed through the narrow prism of the actual threat faced. One of the problems here is that Mr. Ashcroft came to his post as head of the Justice Department under a cloud of his own previous record as a Missouri governor and senator in the fields of civil rights and civil liberties. Any move he makes that smacks of infringement sets off alarm bells. And well it should.

The imperative of tighter security in time of war is obvious. But as Justice Brennan noted, it's important to step back and make sure fear and panic don't result in abuses of constitutional rights that will later be regretted.

Jules Witcover writes from The Sun's Washington bureau.

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