Liberties disappearing before our eyes

If you don’t believe that America’s war on terrorism threatens your freedoms, delving into any one of these books will change your mind as well as advise you of the rights and liberties that are in true jeopardy. This collection of new works, which address the effect of the war on terrorism on civil liberties, contains one remarkably consistent theme: The federal government has overreacted to the terrorism threat and, in doing so, has traded freedoms of all Americans for an illusion of security. This reality is supported by overwhelming evidence. My hope is to provide at least a whiff of what will be found in each work while winnowing the list for those who want to better understand the situation.

Terrorism, by definition, is an effort to terrify, frighten and intimidate. Terrorists can’t vanquish their enemies, only hurt them, so they deliver their hurtful messages of hate through violent attacks against innocent people. As horrible as terrorism can be, it must be understood in context. Compared with the policy of mutually assured destruction of the Cold War (with its inherent potential of annihilating humankind), national security experts will tell you, privately, that terrorism’s threat to Americans appears to fall somewhere between that of killer bees (which scare people but take very few lives) and drunken drivers (who frighten very few people while killing 17,000 annually).

Former New York Mayor Rudolph W. Giuliani, who experienced the horrors of terrorism firsthand on Sept. 11, 2001, says, “Everyone faces much greater risk every single day to their life, to their health, to their safety from terrorism.” Giuliani has terrorism in perspective. Reading this collection of authors who have been monitoring our response to terrorism, makes it clear that President Bush has a very different perspective. Although he is aware of the likely dangers, he keeps pushing worst-case scenarios for his own political agenda.

Bush has made terrorism his raison d’etre, as he shamelessly and endlessly exploits it, actually using its threat to govern. More specifically, he is using terrorism to “manufacture consent,” to borrow newspaper columnist Walter Lippmann’s phrase. Noam Chomsky explains that consent is manufactured because democratic governments cannot coerce people, yet some democratic leaders want to control (rather than lead) the “bewildered herd,” as Lippmann called the public, and they seek to do so by influencing how people think. As the attacks on the World Trade Center and Pentagon have shown, nothing manufactures consent better than fear. With a few qualms, people are giving up basic rights and liberties.

Daytona Beach News-Journal editorial writer Pierre Tristam recently surveyed the effect of Bush’s antiterrorism policies on the nation’s civil liberties, nicely framing this landscape with “an anthology of retro qualifiers,” observing: “The USA Patriot Act is homage to George Orwell. The Department of Homeland Security is Franz Kafka’s newest castle. The Department of Justice is run by a dangerously sober Elmer Gantry. Guantanamo Bay is a tropical one-stop of Alexander Solzhenitsyn’s Siberian gulag. And whatever goes on in the White House is a cross between Dr. Strangelove and ‘Groundhog Day.’ ”

When reading this collection of books, filled with Orwellian-Kafkaesque-Gantryish-Solzhenitsynesque implications, I could not but think of Atty. Gen. John Ashcroft’s early efforts to stifle such thoughtful analysis. Addressing those he knew would not be cowed as part of the bewildered herd, Ashcroft warned: “To those who scare peace-loving people with phantoms of lost liberty, your tactics only aid terrorists, for they erode our national unity and diminish our resolve.” Fortunately, such new McCarthyism does not intimidate these authors, editors and publishers, who have no interest in phantoms, only facts.

“Why Societies Need Dissent,” the latest work of Cass R. Sunstein, a University of Chicago professor of law and political science, shows that demands for lock-step conformity are wrong and uninformed thinking. Sunstein’s important new study is filled with empirical evidence of the significance of opposition, found in his compelling explanations of the need for, and benefits of, disagreement. Sunstein reveals that, in fact, the influence of dissenters is for the better, be it with courts, juries, corporate boardrooms, churches, sports teams, student organizations or faculties, not to mention “the White House, Congress and the Supreme Court ... during times of both war and peace.”

Sunstein’s book, which expands on material delivered earlier this year in his Oliver Wendell Holmes lectures at Harvard, looks at dissent by drawing on multiple disciplines -- law, political science, history, sociology, psychology, economics and philosophy -- to establish “the hazards of conformity and the importance of dissent.” He explains why and how we conform, what can go wrong in doing so and how dissent helps everyone. From Sunstein’s study can be drawn a clear lesson: “Organizations and nations are far more likely to prosper if they welcome dissent and promote openness. Well-functioning societies benefit from a wide range of views; their citizens do not live in gated communities or echo chambers. The fantastic economic success of the United States owes everything to a culture of open information.”

As Henry J. Abraham and Barbara A. Perry embarked on the update of their classic “Freedom and the Court,” it was in the aftermath of Sept. 11. While no litigation from the war on terrorism has yet made its way to the high court, where Abraham and Perry focus their attentions, they appropriately note that the court will ultimately “act as the nation’s constitutional conscience in deciding these wrenching disputes.”

“Freedom and the Court,” with its personal stories behind the landmark cases, has long been a foundational, scholarly (but not technical) work for those interested in the Supreme Court’s treatment of individual rights relating to freedom of religion (and separation of church and state), freedom of expression, the workings of due process of law (particularly with criminal procedures), and political, racial and gender equality. University of Virginia professor Abraham has been working on this project since 1967; Sweet Briar College professor Perry joined him in 1994. This latest edition, the eighth, is obviously back by popular demand.

In “The Soft Cage,” learned journalist Christian Parenti provides a chillingly inclusive look at the history of surveillance in the United States. From the crude handwritten tracking records of African American slaves in the antebellum South to the uses of early photography to today’s insatiable computers, the author shows surveillance starting as a trickle and becoming a stream that has grown into a raging river.

In today’s digital world, we leave tracks everywhere about ourselves. Parenti supplies a fascinating narrative on the evolving hardware and software, techniques and tactics, uses and abuses of surveillance. “In reality,” he writes, “the erosion of civil liberties, the increase in surveillance, the everyday culture of fear and xenophobia had all become central to American political culture long before 9/11.” Parenti finds, nonetheless, that terrorist attacks produced “surging levels of popular consent for fear-mongering, surveillance-based statecraft” and an “opportunistic acceleration of this country’s long slow decline into the soft cage” of surveillance. He, in effect, corroborates the present manufactured consent.

For me, “Lost Liberties: Ashcroft and the Assault on Personal Freedom” is an inaccurate title for this helpful primer on the tools being used to fight terrorism, which includes a discussion of Ashcroft’s approach and the effect he is having on such matters as privacy, public health and the negative perception of America’s war against terrorism throughout the world. This collection of 13 essays, some based on prior works, others new, are all by knowledgeable writers, and it is about far more than Ashcroft.

Yet I found the book less than satisfying because I was familiar with fuller works by several of the contributors, such as Nancy Chang, an attorney for the Center for Constitutional Rights and one of the first to articulate her concerns in “Silencing Political Dissent,” a tightly argued book published last year. Similarly, I had read the essay by David Cole, a professor at Georgetown University Law Center, when it appeared in the Harvard Civil Rights and Civil Liberties Law Review as “The New McCarthyism: Repeating History in the War on Terrorism.”

And, in fact, Cole’s “Enemy Aliens,” which overshadows his essays, is a good place to start understanding the new preventive law enforcement strategies. Cole focuses on the federal government’s disregard of basic human rights of foreign nationals -- through preventive detention, secret trials, ethnic profiling and guilt by association -- to either imprison or run suspects out of the country. Needless to say, Americans would not tolerate these tactics being employed against themselves. Yet, as Cole notes, we are tolerating it for people who may not be guilty of anything more than not being American.

Cole notes that there are 20 million vulnerable illegal immigrants in the United States, with about 5,000 Arab American and Muslim men being secretly detained under the antiterrorism initiative (only five being charged and one convicted). And they are not being treated well, as we know from a recent study by the inspector general of the Justice Department, who has reported their beatings and mistreatment. Then there are the 650 enemy combatants locked up at Guantanamo Bay, being held without trial, without charges, without access to family or counsel. But before you decide to leave worrying about these non-Americans to bleeding hearts who care, look at Cole’s convincing arguments that this treatment is going to, in the long run, hurt Americans.

Cole explains the law, showing that our government’s treatment of these aliens is patently unconstitutional, because our Bill of Rights applies to all “persons” in the United States, regardless of whether they are American citizens or foreign nationals. He quotes from U.S. Supreme Court decisions and the nation’s founders to make his point. By tolerating this double standard, Cole argues, we are ignoring the likely consequences.

Based on history (we have had to apologize and pay reparations for such mistakes before), corralling or deporting illegal immigrants with the belief that this provides security is an illusion. Cole argues that not only is it constitutionally -- and morally -- wrong, but it is also dangerous, and he again cites our history to demonstrate that what our government does to others today, it will do to Americans tomorrow. And when our government denies basic human rights to citizens of other nations, it has no standing to demand that other nations afford such basic rights to Americans. Simply stated, by treating others as we would want to be treated, we not only realize our humanity but also protect ourselves in the long run. If there is a flaw in Cole’s logic, it escapes me.

The Century Foundation (formerly the Twentieth Century Fund) consistently offers timely studies of important domestic and foreign policy issues and has done so again with “The War on Our Freedoms.” It asked 14 leading scholars, journalists and historians to examine Bush’s war on terrorism. The introduction by Richard C. Leone, president of the Century Foundation, expresses concern over the lack of public debate on, and awareness of, the threat to civil liberties.

Of the many essays, I found that a number of the authors present particularly powerful material:

Ann Beeson, the associate legal director of the American Civil Liberties Union, discusses her efforts to challenge the constitutionality of the USA Patriot Act, the 342-page monster that Congress approved in October 2001, filled with draconian changes to 15 criminal and law enforcement statutes, many of which had been rejected by prior Congresses. And he wants more.

Alan Brinkley, a Columbia University historian, looks at prior crises in which personal liberties have been jeopardized by our government’s using its mission “to seize powers far in excess of what the emergency requires.” We don’t learn from our history.

E.J. Dionne Jr., a syndicated columnist and senior fellow at the Brookings Institution, addresses Bush’s “go-for-broke” political use of Sept. 11. Christopher Edley Jr., a Harvard law professor currently serving on the U.S. Commission on Civil Rights, explains why racial profiling to fight terrorism is wrong and ineffective.

Joseph Lelyveld, interim executive editor of the New York Times, takes readers on a tour of the terrorist prison at Guantanamo, explaining why there are no prisoners of war there (so the Geneva Convention will not apply) and why they are being held in Cuba (because it is beyond the reach of federal courts), and he gives a glimpse of the lives of 650 men in legal limbo.

John Podesta, President Bill Clinton’s chief of staff, discusses the Bush administration’s “preoccupation with secrecy” and how secrecy is being invoked even when it has no relationship to national security. John Stacks, a former deputy managing editor of Time magazine, shares a secret about Bush’s use of secrecy -- namely, that never in the modern presidency has the Washington press corps been so completely denied access to officials as it is by the Bush administration.

Kathleen M. Sullivan, dean of the Stanford Law School, examines how the new law enforcement tactics and technologies to fight terrorism are eroding the bedrock of all our freedoms: privacy. And finally Robert Suro, currently the director of the Pew Hispanic Center, describes the devastating effect of the war on terrorism on immigration, particularly for Mexico.

Picking a must-read from this entire collection is not easy. But if time, or interest, is limited, and you are not well informed, it would be a tossup between the Century Foundation’s “The War on Our Freedoms” and Nat Hentoff’s “The War on the Bill of Rights -- and the Gathering Resistance.” I’ve long enjoyed Hentoff’s work, and he does not disappoint readers in this new book, in which he does as much as the others with fewer words. This former Fulbright scholar writes with eloquence, grace and understanding about the Bill of Rights and the work of the U.S. Supreme Court. Although not a lawyer, he has certainly passed the bar, for the American Bar Assn. awarded him its Silver Gavel for his coverage of the law in his columns for The Village Voice .

Hentoff’s concise, remarkably comprehensive and highly readable book will be distressingly informative for many. Yet it is anything but bleak. He scrutinizes not only what is amiss with the war on terrorism but also how Americans from towns, cities and states throughout the nation have become part of a grass-roots resistance, demanding that their law enforcers not follow the federal lead in ignoring the Bill of Rights. To date, more than 160 governmental units (towns, cities, counties and states) have adopted formal resolutions rejecting the new federal tactics. (The ACLU Web site maintains a list.)

At one point, Hentoff quotes former Supreme Court Justice William O. Douglas and, in doing so, captures a message found throughout this collection of new books: “As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air -- however slight -- lest we become unwitting victims of the darkness.” From this collection one must conclude: It is twilight.