Some Fear Civil Liberties May Be Added to Conflict’s Toll : Rights: Policies and restrictions make libertarians afraid that democratic ideals are being undermined.

“The first casualty when war comes is truth,” Sen. Hiram Johnson of California said in 1917.

Are civil liberties the second?

Some civil rights groups and American historians say the answer is yes.

Although the Persian Gulf War is only 4 weeks old, it already has spawned some restrictions and policies that make libertarians leery--and fearful that democratic ideals are being undermined as the nation rallies to battle.

Among their concerns: The FBI has questioned at least 120 Arab-Americans in an effort to root out possible terrorists. Pan American World Airways has refused to sell tickets to passengers traveling with Iraqi visas. Conscientious objectors in the military are being forced to report to Saudi Arabia before filing for discharge. U.S. commanders in the Middle East censor the mail of American troops--banning Bibles to avoid offending Saudi sensibilities.

Meanwhile, the news media are battling restrictions that some contend have prevented them from giving a complete picture of the war’s progress and impact. And Public Citizen Health Research Group, a Washington-based organization, has filed suit challenging a decision by the military to give unapproved drugs to soldiers as antidotes against chemical and biological weapons without the informed consent of the troops themselves.

All sides agree that additional security measures may be justified during wartime--particularly in the wake of calls by Iraqi President Saddam Hussein for terrorist attacks against Western targets around the globe.

And government officials argue that the restraints that they have imposed are mild--and justifiable. “This is not a time of suspension of anybody’s constitutional rights,” insists FBI Director William S. Sessions. “And it must not be taken that way, nor tolerated.”

But others worry that the restraints, while narrow so far, might be steadily widened as the war goes on, and ultimately retained longer than necessary.

“We should be careful to emphasize that the government’s national security programs even during wartime must be narrowly and legitimately focused on genuine threats,” says Ira Glasser, executive director of the American Civil Liberties Union.

The delicate balance between protecting American freedoms while safeguarding national security during wartime is a centuries-old challenge.

Henry Steel Commager, the distinguished Amherst College historian, says that the curtailment of civil liberties has been “taken for granted in wars, from the Civil War to the present.”

But “I don’t think it’s excessive compared to other countries, and none of it has endangered the Bill of Rights,” Commager says.

Yet, civil libertarians say the rubric of “national security” too often has served as the rationale for trampling individual rights beneath popular sentiment or political expediency--from Lincoln’s move to suspend the writ of habeas corpus during the Civil War to more recent efforts by officials to stifle dissent during the Vietnam War.

The Great Emancipator’s willingness to detain suspects for months without informing them of the charges against them reached a peak after Edwin M. Stanton became secretary of war in 1862.

“Stanton said a man could serve his country in a prison cell as well as anywhere,” says Shelby Foote, the prominent Civil War historian. “He said they ought to be willing to be put in jail under suspicion since the reason they were put there was for the safety of the country--in his judgment.”

During and just after World War I, persecution and prosecution of German-Americans and radical groups--particularly the International Workers of the World--was widespread. Labor leader and Socialist presidential candidate Eugene Debs was sentenced to 10 years in jail under the Espionage Act of 1918 for his vehement opposition to U.S. entry into the war.

World War II saw greater tolerance of German-Americans and Italian-Americans, but--in a step that now lives in infamy--the government interned 112,000 West Coast Japanese, most of them American citizens.

Meanwhile, the widespread fear of communism during the Korean War tended to stoke the anti-communist fervor that was the backdrop for McCarthyism.

Conservative critics of the ACLU and other civil liberties groups say they have blown such current concerns out of all proportion. Former Judge Robert H. Bork brands any suggestion that the Gulf conflict has given rise to widespread civil liberties violations as “nonsense.”

“Those groups have gotten themselves to the point where things previously regarded as legitimate no longer are,” Bork says. “What’s expanding is their notion of what civil rights are.”

But some historians point out that the real test is yet to come because the war is still in its early stages, generally has gone well and has not produced heavy American casualties.

“If we have a long, grueling, bloody ground war, there will be tremendous resentments building up in this country, not only against the Iraqis in particular, but against various Arab peoples in general,” says James MacGregor Burns, a distinguished historian at Williams College. “I would worry about the aftermath of a long war.”

Already, the FBI has questioned about 120 Arab-Americans as part of a program to “interdict terrorists.” Although authorities said the interviews were strictly voluntary, critics contend that the questioning of individuals based solely on their ancestral connections to the Mideast amounts to harassment and ethnic stereotyping.

“A fishing expedition among Arab-Americans sends us back to World War II Japanese-American concentration camps,” asserts Albert Mokhiber, president of the American-Arab Anti-Discrimination Committee. Mokhiber says the action will foster “suspicion of Arab-Americans.”

But the Justice Department defends the interviews. William M. Baker, the FBI’s assistant director in charge of criminal investigations, says that the bureau has obtained valuable information from them--though he declined to give specifics.

And the nation’s top civil rights enforcer, Assistant Atty. Gen. John R. Dunne, says his review of the effort shows that the contacts were not aimed only at getting information, but at notifying Arab-Americans that the bureau is prepared to protect their civil rights if there is any public backlash from the Gulf War. It’s “a balanced approach,” Dunne asserts.

Dunne says the FBI has opened more than 40 investigations into alleged violations of civil rights of Arab-Americans--more than half of them since hostilities began in the Gulf on Jan. 17.

In Los Angeles, authorities are investigating fires that destroyed businesses owned by a Lebanese-American in Sherman Oaks and by an Iranian-Jewish immigrant on the Westside.

“There is so much hatred out there,” says Muna Hassan of Brooklyn. “I can’t say what I’ve been called.” Hassan says her 16-year-old daughter was almost hit by a car whose driver yelled anti-Arab remarks at her, and that one of the girl’s teachers disparaged Islam in class.

Arab-Americans say their concern that the government’s interview program will have repercussions is reflected in Pan Am’s decision to turn away passengers with Iraqi passports since the Gulf War began. Moreover, an informed source familiar with the airline’s anti-terrorism measure said that Pan Am initially considered barring any passenger with an Arab nation’s passport--not just Iraqis.

The airline has been particularly sensitive to security threats since it lost a jetliner to a suspected terrorist bomb in 1988 over Lockerbie, Scotland, killing 270 people. Pan Am declined to comment on the issue.

Edith Tiger, executive director of the National Emergency Civil Liberties Committee, responded angrily: “Pan Am World Airways, by barring all Iraqi nationals, has unilaterally embarked upon a new wave of McCarthyism.”

And the New York City Human Rights Commission has said that Pan Am’s policy may violate a state civil rights law.

In the wake of such criticism, Pan Am modified its ban Feb. 6 to allow Iraqi nationals with permanent-resident status in the United States to fly. The U.S. Department of Transportation, meanwhile, has not taken a position on Pan Am’s action “or what our policy is,” a spokesman says.

The concerns over individual rights extend to the military.

In the fall, the Army changed its rules on applying for a discharge as a conscientious objector. Today, soldiers are prohibited from submitting such claims until they have actually reached their duty stations in Saudi Arabia.

Kathy Gilberd, co-chairwoman of the Military Law Task Force of the National Lawyers’ Guild, says that policy places would-be conscientious objectors at a decided disadvantage. Because of the huge distance involved, an applicant may be unable to afford to have his attorney present or to call witnesses who can corroborate his change in beliefs.

Pentagon spokesman Bill Caldwell denies that the military’s policy has changed, contending that it is necessary to keep applicants with their units--even if they are sent to Saudi Arabia--because the hearings are before unit commanders. He says affidavits could be taken to support a soldier’s claim.

Controversy over censorship of mail to the troops arose before the fighting began. The Saudis prohibited delivery of Christian Bibles, the Old Testament, yarmulkes, crucifixes and other non-Islamic religious articles, according to Rep. Matthew J. Rinaldo (R-N.J.), who called the practice “heavy-handed” and likely to be damaging to morale.

At the same time, the ACLU’s Glasser wrote Defense Secretary Dick Cheney: “The American military is entitled to the full protection of their rights even, and especially, as our troops are sent to foreign soil to defend American values.”

Use by troops in Saudi Arabia of drugs not yet approved by the Food and Drug Administration involves pharmaceuticals intended to counteract the effects of nerve gas, a vaccine to prevent bacterial poisoning during biological warfare, and a skin cream to protect troops against mustard gas. Iraq’s Hussein has vowed to use such unconventional weapons against allied forces.

The suit filed by Public Citizen Health Research Group seeks to block the use of all such drugs without the informed consent of the service people affected.

The Pentagon argues that obtaining individual consent from troops in the field would not be “feasible in certain battlefield or combat situations.” Instead, federal officials said that any drug not formally approved by the FDA that is given to the troops would be carefully screened by the FDA to make sure it poses no health risk.

On Feb. 8, the Defense Department decided against using the skin cream Multi Shield, after new tests disclosed problems in the manufacturing process. These included side effects such as irritation and skin edema. Officials worried that pain and itching could cause troops to remove gas masks in an attempt to relieve such symptoms--a potentially fatal act during a chemical weapons attack.

Sidney Wolfe, director of Public Citizen, contends that “our country cannot be allowed to treat soldiers as though they are human guinea pigs.”

U.S. District Judge Stanley S. Harris last month refused to overturn the Pentagon’s policy. Public Citizen is appealing Harris’ decision.

During the Vietnam War, many of the civil liberties controversies focused on efforts to counteract opposition to the war. In contrast to the disparagement of anti-war demonstrators during the Nixon Administration, President Bush has gone out of his way to acknowledge that dissent is legitimate.

“Of course I know that some disagree with the course that I’ve taken,” Bush told a meeting of religious broadcasters recently. “I have no bitterness in my heart about that at all, no anger. . . . Tolerance is a virtue, not a vice.”

Indeed, William E. Leuchtenburg, a history professor at the University of North Carolina who is president of the American Historical Assn., says he is hopeful that the Persian Gulf War will not spawn the abuses by the federal government that marked earlier conflicts.

“I think we’ll see individual acts of hatred, particularly against Arab minorities,” Leuchtenburg says. “I think we’ll see some pretty violent rhetoric against critics of the war. But, at least at this point, I don’t see us going much beyond that.”