Activist Groups on Lookout for Erosion of Civil Liberties

Civil libertarians are girding for a backlash that could limit individual freedoms as a result of this week’s terrorist attacks.

The American Civil Liberties Union of Northern California has started a telephone hotline to monitor incursions into civil liberties, particularly racial profiling.

“At this time of crisis, we want to make sure that civil liberties aren’t violated,” said Dorothy Ehrlich, executive director of the ACLU’s Northern California chapter.

The Lawyers’ Committee for Civil Rights is meeting in San Francisco today to discuss the risks of repressive steps taken in the name of safety and to plan a response if needed.

“It is a slippery slope when you say you want to be safer at the expense of civil liberties and civil rights,” said Eva Jefferson Paterson, executive director of the San Francisco affiliate of the Lawyers’ Committee for Civil Rights Under Law. “We have to be careful that we don’t overreact to it.”

Leaders Urged to Uphold Liberty

Leaders of the activist groups say they are concerned that in previous times of national crisis, civil liberties, including freedom of speech and movement, have been restricted. An ABC-Washington Post poll taken shortly after Tuesday’s attacks on the East Coast found that 66% of Americans would be willing to give up some civil liberties to combat terrorism.

Congressional leaders have not proposed any changes in law at this point to respond to security threats. Indeed, some, such as Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, have cautioned against acting hastily, while simultaneously condemning the terrorist attacks.

“Trial by fire can refine us or it can coarsen us,” Leahy said in a speech on the floor of the Senate this week. “If we hold to our ideals, then it strengthens us. . . . If we abandon our democracy to battle [terrorists], they win.”

Still, some groups said it is premature to worry about limitations on privacy and other rights. “We are not looking for draconian proposals that don’t yet exist,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington. “If they are presented, we will need to look at them.”

Other groups have couched their concerns with cautious praise of the government’s initial response to the violence.

1996 Terrorism Law Raised Concerns

On Wednesday, Anthony D. Romero, executive director of the national ACLU, commended “the eloquent words of President Bush” in calling the U.S. “the brightest beacon for freedom.”

“We will urge our leaders to continue to uphold the principles of liberty the nation holds dear as they pursue those responsible for this devastating attack on American soil,” Romero said.

But some civil libertarians, concerned that the past could be prologue, point to such measures as the federal 1996 anti-terrorism law as reason for concern. The act was passed in the aftermath of the federal building bombing in Oklahoma City.

David D. Cole, a Georgetown law professor who has argued civil liberties cases before the U.S. Supreme Court, criticized a provision of the law that makes it a crime to provide material support for any designated foreign terrorist organization “even if the support is only for lawful activity of that group,” such as providing medical supplies.

“The Secretary of State has unchecked authority to designate groups as terrorists,” Cole said, and a conviction for violating the law can yield a prison term of up to 10 years.

So far, at least three prosecutions have been lodged under this provision--two in Los Angeles and one in North Carolina. In these cases, the accusations are more serious than providing medical supplies.

Two cases are still pending trial. The Los Angeles one involves the arrest of seven people for allegedly providing funds to the Iran-based Mujahedin-E Khalq that would be used for the purchase of arms. The case in Charlotte, N.C., involves alleged support to Hezbollah terrorists in Lebanon in the form of weapons.

Lives Called More Important Than Liberty

In the first conviction under the law, a San Fernando Valley man pleaded guilty in 1999 of providing material assistance to the Mujahedin-E-Khalq in a case involving fraudulent visa and asylum applications.

Laws such as the 1996 anti-terrorism act are welcomed by security-conscious groups that support expanded police powers.

“Terrorism is a real threat to our lives and liberty, and that should be our primary focus,” said Yaron Brook, executive director of the Ayn Rand Institute in Marina del Rey.

Brook said Americans should be more concerned about losing their lives than their civil liberties. Indeed, Brook said he hopes the current crisis spurs moves to give security agencies greater freedom to investigate suspected terrorists.

“We should allow the FBI and the police to take measures to ensure that terrorism is stopped,” Brook said. “I don’t think they have to violate our individual rights as long as they act based on a suspicion.”

University of California Hastings College of the Law professor Vikram Amar said the U.S. has typically responded to foreign threats with a “crackdown on free speech.”

After World War I, the federal government staged raids without warrants against radicals and leftists and deported immigrants who were not citizens. During World War II, the U.S. Supreme Court upheld the internment of Japanese Americans.

In the midst of the anti-communist hysteria of the Cold War, the U.S. Supreme Court let stand a law that made it illegal to teach communism.

Years later, the court stepped back, saying that people cannot be prosecuted for their ideology without evidence they are inciting imminent lawlessness, Amar said.

More Surveillance, Racial Profiling Likely

Legal scholars say that courts in times of crisis tend to uphold government efforts to expand surveillance and limit individual freedom.

“You will see judges being more willing to grant wiretap authorizations, search warrants and other types of 4th Amendment intrusions,” predicted Golden Gate University Law School Dean Peter Keane.

“Judges tend to be stampeded in times of danger like this,” Keane said.

Court decisions already give the government broad freedom for surveillance in public places, such as airports.

“The law is clear: in a public place we don’t have a reasonable expectation of privacy,” said USC law professor Erwin Chemerinsky.

Legal scholars said the law is less clear when it comes to targeting people based on certain characteristics or profiles.

The U.S. Supreme Court in 1989 upheld the use of profiles for stopping suspected drug couriers because the profiles were not race-based.

Chemerinsky said it would violate the Constitution’s equal-protection guarantees to single out people of Arab ancestry for searches at airports or other public places.

“I think racial profiling violates the Constitution in this and all circumstances, but it doesn’t mean it is not going to happen,” he said.

He said he believes courts would approve the use of terrorist profiles that include race as long as it is not the dominant consideration in searches.

Arab Americans Anticipate Suspicion

Among those most concerned are Arab Americans. Hussein Ibish, communications director of the American-Arab Anti-Discrimination Committee in Washington, said that even before this week’s events, Arab Americans have been subjected to brutal searches based on their ethnicity.

Ibish said he already had cautioned Arab Americans to be “patient and tolerant” in the weeks to come if people view them with suspicion.

“The fact that there are security problems in this country is obvious,” Ibish said. “I think any serious ideas for improving security ought to be given some hearing, but we don’t want to tear up our constitution.”