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Does Suspending Civil Liberties Protect Us from Terrorism?

Lawrence Bush
September 1, 2004

by Udi Ofer
Image of the U.S. ConstitutionOn the morning of October 3rd, 2001, Mr. Mehmood was in his home in Bayonne, New Jersey when the FBI knocked on his door. Without a search warrant, they proceeded to search his home, and then, with no explanation, they placed him in full-body shackles and transported him to the Metropolitan Detention Center in Brooklyn. Upon arrival, he was assaulted by guards while shackled. Mr. Mehmood was then taken to a cell and informed that he was a suspect in the September 11th attacks. He was detained for six months at the Metropolitan Detention Center. For about four of those months, he was kept in solitary confinement for 23 hours a day.
The FBI had gone to his home in response to a tip that later proved to be erroneous. A colleague had wrongfully claimed that Mr. Mehmood, who operated a trucking company, had refused to make a delivery on September 11th. Following his months of detention, Mr. Mehmood was finally charged with possessing an invalid Social Security card. In May, 2002, he was deported to Pakistan. He now lives in Karachi with his family and cannot return to the U.S. for 10 years. (See Sanctioned Bias: Racial Profiling Since 9/11, a February 2004 report by the ACLU.)
The above is just one incident among thousands in which individuals with no connection to terrorism have been swept up by the government’s new, post-September 11th anti-terrorism powers. Detentions without charges, ethnic and religious profiling, surveillance of First Amendment-protected activities, and unfettered government access to personal records have all become commonplace in the United States.
The government claims these extraordinary police powers are necessary to protect national security. Certain constitutional safeguards must be temporarily sacrificed, it is argued, in order to protect public safety. Civil libertarians reply that these are needless erosions of personal rights and freedoms and will not make the country safer. At the heart of this debate are two important questions: Do civil liberties and national security conflict? Does America’s freedoms make the country especially vulnerable to terrorist attacks?

In order to evaluate whether civil liberties and national security conflict, we must first understand the liberties at stake and their impact on tens of thousands of individual lives.
Most disturbing has been the widespread government practice of ethnic and religious profiling. Since September 11th, thousands of Arab, Muslim, and South Asian men have been interrogated, detained or deported based primarily or entirely on their ethnicity or religion. These practices not only violate the Constitution and human rights, but are inefficient, expensive, and have not made the nation safer.
Numerous government and private-sector agencies have reached this conclusion, including the ACLU, Lawyers Committee for Human Rights (now known as Human Rights First), and the Center for Constitutional Rights. Most tellingly, the Inspector Generals Office of the Justice Department has detailed widespread civil rights and civil liberties abuses during the post-September 11th round-ups of hundreds, if not thousands, of immigrant men. Not one of the men was ever charged with participating in or lending support to terrorist activities (see the June 2003 review from the Office of the Inspector General of the Department of Justice).
Profiling began in the hours following the September 11th attacks, when the government initiated the Pentagon Twin Towers Bombing (PENTTBOM) investigation to identify the attackers and their supporters. The public does not know the exact number of immigrants who were detained, since the government refuses to release that information. Many were held for weeks without charges, denied access to counsel, and placed in a communications blackout and in solitary confinement. According to the Inspector General of the Justice Department, many of the detainees held in Brooklyn were subjected, like Mr. Mehmood, to a “pattern of physical and verbal abuse” by prison guards.
Many of the detainees were eventually charged with violations of immigration law most commonly minor violations, such as failure to file a change of address within 10 days of a move. After being held for an average of 80 days, some for much longer, they were cleared of terrorism charges and either released or deported.
The round-ups left a chilling effect on the Arab, Muslim and South Asian communities in the United States. The government then compounded this effect by implementing the Special Registration program for men from predominantly Muslim countries who had come into the United States on temporary visas and still had non-permanent status. In all, more than 82,000 men registered, of whom 13,000 were placed in deportation proceedings. None were ever charged with anything related to terrorism. In the early days of the registration program, innocent individuals were detained for days because the government was so overwhelmed that it couldn’t verify their immigration status in a timely manner. Thousands of innocent people were swept up in the profiling frenzy, and thousands of families are now being ripped apart. The program cost taxpayers over $360 million, yet there is no evidence that this has made the nation safer.
The Pakistani Embassy estimates that in the Midwood neighborhood of Brooklyn alone, over 10,000 Pakistani residents have left or been deported as a consequence of anti-terrorism policies. Its worth noting that the Pakistani community moved to Brooklyn, in part, because of the availability of kosher food, which fits with hallal (Muslim dietary) guidelines.

Unfortunately, there are many in the U.S. willing to tolerate profiling in the belief that it’s a small price to pay by members of the targeted community. They do not understand the magnitude of the profiling and associate it only with airport inconveniences rather than mass arrests and deportations. People especially tend to be more tolerant of intrusive government policies that don’t affect them. This feeling of disconnection from other members of society indicates a need to educate people about the nation’s ethnic and immigration history, during which many different groups have been targeted based on their ethnicity, religion or association with a country at war with the U.S. The secure minorities of today may have been the unpopular minorities of the past.
'Step out of line and follow me'In fact, this is hardly the first time in the nation’s history that personal freedoms have been curtailed in a time of crisis. Fearing the influence of the French Revolution and seeking to silence Republican voices, the Federalists under President John Adams passed the Alien and Sedition Acts of 1798, which authorized deportation of foreigners judged to be “dangerous to the peace and safety of the United States” and made it a criminal offense to print any “false, scandalous and malicious writing” against the government. During the Civil War, President Lincoln suspended the writ of habeas corpus and the government imprisoned more that 13,000 Americans without trial.
World War I saw passage of the Espionage Act, which authorized the government to “confiscate property, wiretap, search and seize private property, censure writings, open mail; and restrict the right of assembly.” Hundreds of Americans were convicted for their criticism of the war and the draft. Following the war, Attorney General A. Mitchell Palmer initiated raids into immigrant communities that led to the arrest of 6,000 foreigners without probable cause. None were convicted of any crime, but 500 immigrants were eventually deported for their political beliefs. (The Palmer Raids led to the founding of the ACLU.) During World War II, over 110,000 Japanese Americans, two thirds of whom were U.S. citizens, were placed in internment camps. Public sentiment for internment at the time was strong.
In these and other examples, cooler heads prevailed once the crisis subsided. Today, many believe that the country has entered into a similar dark phase in its history, when constitutional rights are being eroded for a false and temporary sense of safety.

U.S. citizens have not been spared under the government’s anti-terrorism policies. At least two U.S. citizens continue to be held without charges in military brigs as “enemy combatants.” Jose Padilla, born in Brooklyn, was arrested on May 8th, 2002 on a material witness warrant at Chicago O’Hare airport. A federal judge ordered a hearing for June 11th to consider Padilla’s challenge to his detention, but on June 9th the government transferred Padilla to military custody, denied him any further contact with his attorney, and argued that the judge no longer had jurisdiction.
Yasser Hamdi allegedly fought for the Taliban in Afghanistan. He was caught by Northern Alliance forces during the military conflict in 2001, and was transferred to Guantánamo Bay, Cuba. When Hamdi’s American citizenship was revealed, he was removed from Guantánamo Bay and transferred to a naval base in Virginia. Unlike John Walker Lindh, the other U.S. citizen captured on the battlefield in Afghanistan, Mr. Hamdi has not been transferred to civilian custody or charged with any crime.
I attended the Supreme Court arguments in both cases. They provided great insight into the government’s view of its anti-terrorism powers. The Bush administration argued that the resolution passed by Congress shortly after September 11th granted the President authority to take whatever actions he deemed necessary to protect Americans from terrorism — including detaining Americans without charges and in complete secrecy, without access to the outside world.
The Supreme Court ruled on the cases of Yasser Hamdi and Jose Padilla on June 28th. It sent Padilla’s case back to the lower courts for procedural reasons. But in the Hamdi case, the Supreme Court ruled that he and other enemy combatants must be granted some due process rights to challenge their detention. While the decision was a blow to the Bush administration’s insistence that it should have unfettered powers, the Supreme Court gave approval to the executive branch’s power to hold citizens as enemy combatants and failed to detail what the due process rights of detained citizens are.

Parts of the USA PATRIOT Act provide further examples of new anti-terrorism powers that infringe on basic rights and liberties. Passed just 45 days following September 11th and with virtually no Congressional debate, the PATRIOT Act erodes basic constitutional rights, such as the right to freedom of speech, equal protection, due process of law, and to be free from unreasonable search and seizure. There is great confusion, even in the government, about the powers contained in this statute, which is 342 pages long. I will focus on two controversial provisions:
Section 215 of the PATRIOT Act grants the FBI breathtaking authority to obtain an order from the secret Foreign Intelligence Surveillance (“FISA”) Court to require any person or business to produce any books, records, documents or items without having to prove any suspicion of criminal activity. The FISA judge has no discretion and must issue the order upon the FBI assertion that the information is sought for an ongoing terrorism investigation. There is absolutely no requirement of asserting individualized suspicion, let alone proving probable cause, as required by the Constitution. Moreover, the institutions or persons served by the order are “gagged” from informing anyone, including the subject of the search, that the government made the request.
Section 215 authorizes the government, for example, to obtain an order from the secret FISA Court to request that the New York Public Library turn over the name of every person who borrowed the book titled “Islamic Fundamentalism.” All that the government has to say is that the list is sought for an ongoing investigation into terrorism. There’s no need to prove criminal suspicion. The library will be prohibited from telling anyone that the FBI made the request.
Section 802 expands the definition of “domestic terrorism” so that groups engaged in nonviolent civil disobedience could be charged with terrorism. Under the provision, any crime that is dangerous to human life and appears to be intended to influence the policy of a government by intimidation or coercion is domestic terrorism. Members in organizations such as Greenpeace, the animal rights organization PETA, or the anti-choice group Operation Rescue may now be prosecuted for terrorism.
The secrecy surrounding many of the PATRIOT Act powers makes it difficult to judge how widely the Act is being employed. We do know that PATRIOT Act powers are being applied in criminal proceedings that have no connection to terrorism, and that the government has frequently used some of the Act’s most controversial provisions, including those expanding the use of National Security Letters and “sneak and peek” searches (searches without notice).
All of these anti-terrorism powers curtail constitutional rights and liberties. Those who call for their use argue that the curtailments are necessary to protect the public safety. However, they offer little if any evidence that these policies have made the nation safer. The burden of proof is on them.

The Constitution and Bill of Rights were written at a time of great national insecurity. They were meant to equip us with tools needed to withstand challenges like the ones we face today. As Benjamin Franklin noted in 1759, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
It is becoming increasingly clear, however, that many post-September 11th anti-terrorism policies have done precisely that: needlessly sacrificed constitutional rights for a temporary sense of safety. The Supreme Court has already struck down some of the most controversial aspects of the administration’s anti-terrorism policies. Moreover, the September 11th Commission concluded in its final report that “the choice between security and liberty is a false choice ... Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend” (see the report of the 9/11 Commission). In an earlier statement, the Commission concluded that post-September 11th immigration policies taken in the name of national security have been ineffective and led to little, if any, information on suspected terrorists (New York Times, April 17th, 2004).

Americans from across the political spectrum are responding to what they believe is the needless erosion of basic rights and freedoms. In addition to the ongoing legal challenges (one section of the PATRIOT Act has already been judged unconstitutional), a remarkable grassroots movement is sweeping the nation. Driven by grassroots support and under the leadership of the ACLU, four states and over 330 cities, towns and counties have passed resolutions calling on government officials to protect civil liberties and civil rights when undertaking anti-terrorism initiatives. More than 53 million people are represented by these civil liberties safe zones. Their support crosses the political divide.
Resolutions have been passed by legislative bodies in New York City; North Pole, AK; Boise, ID; and Dallas, TX. Strange bedfellows are being made in the post-September 11th era, as the ACLU and People for the American Way work with the American Conservative Union and Gun Owners of America.
Advocating on behalf of constitutional rights in a time of crisis is a difficult job. Yet it is precisely when national tragedy strikes home and an exaggerated feeling of patriotism sweeps the nation’s populace that we must also think about the nations core values. Civil liberties do not have to be sacrificed in the name of national security. We must find a way to be both safe and free.

Udi Ofer is an attorney at the New York Civil Liberties Union (NYCLU) and director of the New York Bill of Rights Defense Campaign, the NYCLU’s project on post-September 11th civil liberties issues. Mr. Ofer, a native of Israel, has worked on civil liberties and national security issues in both the United States and Israel. Prior to joining the NYCLU, Mr. Ofer was a Skadden Fellow at My Sisters’ Place, a domestic violence organization.

​​​​Lawrence Bush edited Jewish Currents from 2003 until 2018. He is the author of Bessie: A Novel of Love and Revolution and Waiting for God: The Spiritual Explorations of a Reluctant Atheist, among other books. His new volume of illustrated Torah commentaries, American Torah Toons 2, is scheduled for publication this year.