Civil Liberties Take Back Seat to Safety

American civil liberties are as fixed and steady an influence in national life as the stock market--and every bit as elastic.

Like the market, the rights enjoyed by U.S. citizens have grown to an extent that the Founding Fathers probably never imagined. But in times of danger, civil liberties have shrunk, suffering what market analysts might call a correction.

Since Sept. 11, the federal government has approved secret military tribunals for accused terrorists, given law enforcement unprecedented powers to tap phones and read e-mail, and helped foster an atmosphere of self-censorship summed up shortly after the attacks by White House spokesman Ari Fleischer, who warned Americans to “watch what they say.”

None of this compares to the internment of Japanese Americans during World War II or the widespread suspension of liberties during and after World War I. But after decades of steady advances in civil liberties, the government’s actions seem to mark a historical shift.

The weight of change has fallen most heavily on foreigners, particularly Middle Easterners. The shift is all the more striking because before September noncitizens had been enjoying their greatest period of freedom in U.S. history, the result of a series of U.S. Supreme Court rulings.

In one of those decisions, Justice Stephen G. Breyer wrote last summer that once immigrants enter the United States, they are protected by the Constitution “whether their presence here is lawful, unlawful, temporary or permanent.”

The spirit and letter of government policy changed drastically after the terrorist attacks. Atty. Gen. John Ashcroft ordered the detention of more than 1,000 foreigners suspected of posing a security threat or believed to have information about the hijackers. Information about the detainees has been scanty. Many have had little or no access to lawyers and family.

According to the Justice Department, 327 people remain in detention for immigration violations, such as overstaying a visa. One hundred and fourteen are behind bars on criminal charges, mostly minor and none directly related to the terrorist attacks. An undisclosed number are being held as material witnesses, meaning the government suspects they know something about the hijackings.

Human Rights Watch, an international rights organization, complained last month that the U.S. “continues to refuse to disclose basic information” about the imprisoned foreigners.

The change is palpable in such places as Brookhurst Street in Anaheim, a neighborhood of immigrants from Egypt, Syria, Jordan and other Middle Eastern nations. A new vocabulary has taken root in places where people gather to talk amid curling smoke trails from water pipes. Conversations are peppered with references to interrogations, searches, detentions and hate crimes.

Attorney Stephen Mashney works here in a third-floor office overlooking Arab shops and restaurants. “There is a very severe chill among Arabs and Muslims who are Arab,” said the Palestinian immigrant. “The U.S. that exists today is not the same place that existed before Sept. 11.”

‘It’s Beautiful for Americans Only’

Omar Mohamed spent six months in the United States, a time that seemed divided between two countries.

For the first three months, the 19-year-old Egyptian explored the America of his dreams: the Empire State Building, the casinos of Atlantic City, N.J., even the “dollar menu” at McDonald’s.

“It was beautiful,” Mohamed said in accented but proper English.

The next three months he spent behind bars at the Hudson County Jail in Kearny, N.J. By the time he was deported Dec. 14, he had come to a new understanding of the United States.

“It’s beautiful,” he said, “for Americans only.”

The government will not say why Mohamed was detained for so long. Investigators found no evidence that he was involved in terrorism. He was charged with violating the provisions of his tourist visa by working.

In a jailhouse interview hours before he was deported, Mohamed described himself as a third-year mechanical engineering student at Ain Shams University in Cairo. He had come to the United States on a round-trip ticket given to him by his parents, both of whom work for EgyptAir. The trip was intended, he said, as a break in his studies, an opportunity to see the world. He was invited to stay with a family friend who owns a gas station in Toms River, N.J.

Mohamed began pumping gas there. After Sept. 11, the FBI got a tip that one of the 19 hijackers had worked at the station. Agents investigated and quickly determined that the tip was erroneous. They nevertheless detained one attendant, who was later released.

Mohamed was also picked up--perhaps, he said, because he had told American friends he wanted to take flight lessons.

“It’s true,” he said. “My father works for the airline, my mother works for the airline. I thought they could help me get a job.”

After he was arrested Sept. 18, the Immigration and Naturalization Service gave him two options, Mohamed said. He could agree to deportation or fight to stay in the United States. He chose deportation but was then told he needed FBI clearance to leave.

It was a frustrating case, said his lawyer, Sohail Mohammed of Clifton, N.J.

“I know how to keep someone in the country,” he said. “But trying to get someone out is a lot more difficult than I thought it would be.”

Mohamed said he wasn’t allowed to call his family in Egypt. He estimated that he was among 200 Middle Eastern men at the jail. He said the rooms were cold, the food violated Muslim dietary laws and he was taunted by American prisoners.

“They tell me, ‘Osama will help you,’ ” Mohamed said, smiling wryly. “They say, ‘You’re Arab. Why don’t you just make a hole in the wall with a bomb?’ ”

He said he was angry.

“People have a right to be told why they are being held,” he said. “We know we were wrong for violating our visas, but why do they hold us for this long?”

For lawyer Mohammed, Sept. 11 sparked a boom in business. After the attacks, he took on about a dozen detainees as clients and became a spokesman for their plight. He also saw a sharp increase in the number of Middle Eastern immigrants who want to apply for citizenship.

Before Sept. 11, he said, “they would say, ‘What’s the difference? I have all the rights a citizen has.’ ”

They no longer say that.

“There is a clear line in the sand being drawn now,” he said, “and which side of the sand you’re on makes a big difference.”

There is no such thing as absolute civil liberty. “It is not simply ‘liberty,’ ” observed Chief Justice William H. Rehnquist in his 1998 book, “All the Laws but One.” The qualifier “civil” comes from the same root as the word “citizen” and implies obligations as well as freedoms.

A modern American has the liberty to hop in a sport-utility vehicle (as long as it’s registered) with personalized (but not obscene) license plates and go wherever he or she wants--assuming he or she doesn’t exceed the speed limit, which is one of the “civil” parts of that liberty. The limit changes from time to time and place to place.

In the same way, other liberties have ebbed and flowed throughout the nation’s history.

Eric Foner, a Columbia University historian, said it is a relatively recent phenomenon for civil liberties to be considered “very ingrained in our culture. For most of our history, the Bill of Rights was pretty irrelevant. There were egregious violations well into the 20th century.”

Foner, author of “The Story of American Freedom,” a history of civil liberties, said the idea of those freedoms as a central national ethos did not gain broad currency until the 1920s, in reaction to governmental excesses during and after World War I.

At that time, the government effectively banned dissent, and federal agents led by a young J. Edgar Hoover rounded up hundreds of suspected communists and anarchists, held them without trial and ultimately deported them.

World War II witnessed the detention of 110,000 people of Japanese descent, two-thirds of them U.S. citizens. The detainees, most of whom were from California, lost homes and businesses; many also lost faith in the American values of equality and fair play. It would be nearly 50 years before the government formally apologized and paid reparations.

The war era also yielded the Smith Act, which made it a crime to advocate the violent overthrow of the government or to belong to a group that espoused revolution. The act provided the underpinnings for the McCarthy-era repression of communists and their purported allies.

Paradoxically, a legal controversy sparked by Nazi repression contributed to the enshrinement of civil liberties as a core American value.

In 1933, German officials banned the Jehovah’s Witnesses for refusing to join in the “Heil Hitler” raised-palm salute. Thousands of Witnesses were imprisoned in German concentration camps.

Wartime Case Proved to Be Watershed

In response, Jehovah’s Witnesses in the United States denounced compulsory flag salute laws everywhere. When Witness schoolchildren in Minersville, Pa., refused to salute, they were expelled for insubordination. The expulsions were upheld by the Supreme Court, 8 to 1, in 1940.

Writing for the majority, Justice Felix Frankfurter extolled the flag as “the symbol of our national unity, transcending all internal differences.”

The issue was before the high court again in 1943. With two new justices and three who had changed their minds since 1940, the court reversed its earlier ruling.

In the majority opinion, Justice Robert H. Jackson linked the issue to the nation’s battle against fascism. In quashing unpopular liberties, he suggested, the U.S. was stooping to the level of its enemy.

“Those who begin coercive elimination of dissent soon find themselves exterminating dissenters,” he wrote. “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

Civil liberties were considerably broadened during Earl Warren’s term as U.S. chief justice from 1953 to 1969, starting with the landmark Brown vs. Board of Education decision of 1954, which outlawed segregated schools.

The Warren Court also restricted wiretapping, upheld the right to be secure against unreasonable searches and seizures, broadened the parameters of free speech and strengthened the right to counsel.

Some of the case names are part of the American lexicon--prime among them “Miranda,” the 1966 ruling requiring police to inform a suspect that anything he says can be used against him and that he can confer with a lawyer before being required to answer any questions.

Like previous crises, Sept. 11 sparked a curtailment of liberties in the name of national security.

The USA Patriot Act, signed into law by President Bush on Oct. 26, broadened the government’s power to monitor private conversations and e-mail, allowed police to obtain a search warrant and enter someone’s home without his knowledge, and made it easier to deport noncitizens suspected of activity that endangers national security.

A separate change in immigration rules permits the attorney general to keep foreigners in detention even when an immigration judge has ordered them freed.

Many argue that the Patriot Act and the detentions of noncitizens are reasonable under the circumstances.

“Extraordinary times call for extraordinary measures,” said Rep. Xavier Becerra (D-Los Angeles), a strong advocate of civil liberties who nonetheless voted for the Patriot Act. “There will be a time when it’s no longer extraordinary and we go back to more ordinary times.”

Aspects of the administration’s policies have come under vigorous attack, however. In particular, many liberals and civil libertarians have expressed horror at Bush’s order permitting suspected foreign terrorists to be tried by military tribunals.

Such tribunals typically afford defendants fewer rights than a regular criminal court. They may be held in secret. A panel of military judges can decide guilt or innocence, and even impose the death penalty, by a less-than-unanimous vote. Defendants may not appeal to a higher court; only the president or the secretary of Defense may overturn a verdict.

Philip B. Heymann, a Harvard University law professor and former deputy U.S. attorney general, strongly supports most of what the Bush administration has done. But when it comes to the military tribunals, he said, “I think they have gone absolutely crazy.”

The order shows that Bush “deeply misunderstands what the U.S. is about,” Heymann said. “The idea that the president could say . . . ‘You are involved in terrorism and therefore you can be tried by three or five colonels of my choice whose promotion depends on how they behave at trial--a private trial with no judicial review’ . . . absolutely staggers me.”

Yet the idea has popular support. Roughly two-thirds of the respondents in two national polls late last year said such tribunals should be used.

“I believe that’s a justified tool,” said Andrew Powell, a commercial leasing agent in Ankeny, Iowa. “The people in the [World Trade Center] didn’t have a right to appeal when the buildings were coming down. I feel the tribunals are very justified.”

Free Speech Gives Way to Self-Censorship

Perhaps just as important as the changes in law are the more subtle changes in American culture. No new law dictates what people can or can’t say. But there has been a narrowing of the parameters of what society deems acceptable, and many people find themselves exercising self-censorship.

Some American Muslims have become fearful of speaking out for unpopular causes, said Salam Al-Marayati, national director of the Muslim Public Affairs Council, based in Los Angeles.

“The message basically is, you cannot talk about certain issues,” he said. “You cannot talk about foreign policy, you cannot talk about the Palestinian-Israeli conflict. That if that were to be brought up, we would immediately be branded as being on the other side. . . . And our concern is that we’re going to lose the America that we’re trying to protect.”

Abdo Khouraki owns the Sindbad Ranch grocery, which sells Middle Eastern food on Brookhurst Street in Anaheim. A naturalized American citizen, he came to the United States 27 years ago and is grateful for this country’s freedoms. But the climate since Sept. 11 has begun to remind him of his native Syria.

“In Syria,” he said, “when you talk politics, you make sure you know everybody in the room, and you whisper.”

Not only Middle Easterners have felt the chill.

“Do us all a favor and die,” read an e-mail sent recently to Steve Benson, a Pulitzer Prize-winning editorial cartoonist for the Arizona Republic in Phoenix.

It was one of dozens of abusive, threatening or obscene messages Benson received after drawing cartoons critical of the U.S. military campaign in Afghanistan.

“You should have been in the towers on 9/11,” said another.

There is nothing new about a political cartoonist receiving hate mail. But Benson said that what he has gotten since Sept. 11 has been exceptional in volume and venom. The anger swelled as the thrust of his cartoons shifted from sympathy for the victims of the terrorist attacks to outrage at U.S. policy.

The foment peaked after a Nov. 8 cartoon titled “Dumb Bombs.” It featured a grinning Bush flying a military jet, dropping bombs labeled “Killing Innocent Civilians” and “Starving Millions of Afghans.”

So great was the outcry that two newspapers, the St. George Spectrum in Utah and the Greeley Tribune in Colorado, apologized to readers for running the cartoon, which was made available to them through the United Feature Syndicate.

Benson, an auxiliary police officer and iconoclast whose views resist categorization, said he has been “appalled by what I see as the intolerance of many Americans for allowing views that digress from their own. I think if we put up the 1st Amendment and some of the other basic freedoms to a vote, they’d go down in flames.”

Benson said his own newspaper has been very supportive. That has not been a universal experience.

Dan Guthrie said he realized in advance that his Sept. 15 column for the Daily Courier of Grants Pass, Ore., would stir up readers. “I knew the timing was terrible,” he said. But he didn’t expect it to cost him his job.

In the column, he accused Bush of cowardice for shuttling to two Air Force bases instead of returning immediately to the White House after the Sept. 11 attacks.

“His first time under real pressure, he bolted,” Guthrie wrote.

Guthrie was pilloried by readers. Eventually, the editor of the Courier published an apology. A week after the column appeared, Guthrie, 61, was fired. He said he was told it was because of the way in which he responded to critical e-mails, not because of the column itself. The Courier’s publisher has declined to comment. But Guthrie said he is convinced he lost his job for expressing an unpopular view.

The changed mood was also evident at a California State University commencement ceremony in Sacramento on Dec. 15. The speaker, publisher Janis Besler Heaphy of the Sacramento Bee, expressed concern that the war on terrorism was undermining basic American freedoms. She was booed off the stage before she could finish.

The willingness to put security ahead of long-cherished protections reflects in part the shock of seeing terrorists kill thousands of Americans on U.S. soil.

Akhil Reed Amar, a professor at Yale Law School and author of a book on the Bill of Rights, believes that of all the factors contributing to American civil liberties, the most important has been the country’s “unique geostrategic location.”

“Once we succeeded in throwing off the British yoke,” he said, “Americans were able to become hegemonic in their own continent without a lot of military enemies surrounding them.”

Sept. 11, Amar said, demonstrated that the world is much smaller than it used to be.

“Now,” he said, “we are vulnerable in ways the rest of the world always has been vulnerable.”

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Limiting Civil Liberties

Americans tend to think of civil liberties as fixed and immutable. In fact, they have expanded and contracted throughout the nation’s history. Those freedoms have often been compromised during times of crisis and war.

1798: Congress passes the Alien and Sedition Acts in anticipation of war with France, restricting the rights of pro-French immigrants and the press.

1861: At the outset of the Civil War, President Lincoln suspends habeas corpus, allowing draft-resisters and Confederate sympathizers to be jailed indefinitely without charges.

1917: Congress passes the Espionage Act, which allows the government to prosecute almost any critic of World War I on charges of disloyalty. Post office refuses to distribute a popular leftist magazine, The Masses. A federal appeals court says the magazine does not speak with the voice of patriotism and therefore does not deserve to be distributed.

1918: The Espionage Act is tightened and becomes the Sedition Act. Socialist leader and four-time presidential candidate Eugene V. Debs is convicted of sedition and stripped of his U.S. citizenship for speaking out against the act. He remains in jail through the 1920 presidential election, in which he is also a candidate.

Jan. 2, 1920: Government agents in 33 cities round up thousands of foreigners suspected of being anarchists or communists, and hold many of them without charges for long periods. The sweep becomes known as the Palmer Raids, after Atty. Gen. J. Mitchell Palmer.

1940: Congress passes the Smith Act, formally known as the Alien Registration Act, which makes it a crime to advocate the overthrow of the U.S. government or to belong to any group that does so. After World War II, this law is used to prosecute suspected communists.

March 1942: The government establishes 10 relocation centers for 110,000 people of Japanese descent--U.S. citizens and Japanese nationals--and interns them for the duration of World War II. Congress offers a formal apology and compensation to the internees 46 years later, in 1988.

1956-71: FBI conducts counterintelligence operations against domestic dissidents under a campaign called COINTELPRO. Tactics include disinformation, infiltration and disruption of the activities of targeted groups, which are mostly on the political left. In 1974, the Justice Department says some of the operations could only be considered abhorrent in a free society.

October 2001: Congress passes the USA Patriot Act, which creates a crime of domestic terrorism, authorizes “sneak and peek” searches conducted without the target’s knowledge, broadens the government’s power to monitor phone and Internet communications, and lets the attorney general detain any foreigner believed to threaten national security.