EXPANSIVE POLICE POWERS THREATEN OUR CONSTITUTIONAL RIGHTS
By John W. Whitehead
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.—Benjamin Franklin
One day after terrorist attacks on the World Trade Center and the Pentagon traumatized our nation, President Bush vowed, “We will not allow this enemy to win the war by changing our way of life or restricting our freedoms.” Then two weeks later, in remarks before a joint session of Congress, Bush stated that Osama bin Laden attacked America because he “hates our freedom and is jealous of our way of life.” Yet six weeks after the tragedy that claimed more than 6,000 lives, Congress passed, and President Bush signed into law, a bill officially known under the Orwellian name the “USA Patriot Act of 2001”—a law that, in many ways, contradicts everything this country stands for and could easily sweep up innocent civilians in a dragnet of surveillance and detentions.
A politician’s dream—and a libertarian’s nightmare—the Patriot Act broadens the powers of the federal government, not only in regard to investigations relating to terrorism but also to criminal investigations. At some 140 pages, this bill is both a marvel of political maneuvering and a monstrosity. Hidden within this tome are provisions that turn the FBI, CIA and INS into secret police, provisions that allow the government to access an individual’s personal records and would prevent a permanent resident from returning to the U.S. after expressing views abroad that the government perceives to be supportive of terrorism.
Indeed, by expanding the definition of terrorism, this law could be used by our government to harass a broad range of political dissenters, ranging from Greenpeace to anti-abortion protesters to environmental activists to the National Rifle Association. And now, for the first time in the history of this nation, federal agents and police officers have the right to conduct black-bag “sneak-and-peek” searches of homes and offices without first notifying you of their intent or without you even being present. Government officials can detain permanent residents indefinitely without charging them with a crime, almost on a whim or a mere suspicion. Moreover, law enforcement investigators can use roving wiretaps to listen in on your phone conversations. This law will also make it easier for the FBI—using its powerful new Internet spying technology called Carnivore—to monitor computers, read e-mails and track which web pages are visited by American citizens with merely the say-so of an employer or university. This is the power now possessed by the FBI, an agency that has, in recent years, been under constant investigation for alleged corruptness.
Incredibly, not many Americans objected to the legalizing of these infringements on their freedoms. As a matter of fact, not long after the attacks on the World Trade Center and Pentagon, a Washington Post/ABC News Poll reported that 66 percent of the people surveyed said they "would be willing to give up some of the liberties we have in this country in order for the government to crack down on terrorism." And according to an NBC News/Wall Street Journal poll, 78 percent said they would sacrifice some privacy for new security laws. No doubt this gave the Bush Administration the unction to move forward on the Patriot Act.
Seven weeks after the attacks on New York and Washington, DC, many people are afraid to open their mail, travel, or even voice their opinions publicly. Americans feel terrorized, and they don’t like it. Unfortunately, that’s the problem with an atmosphere of paranoia and fear—when people get scared, they suddenly become very willing to give up their rights.
Sadly, we cannot rely on the courts to protect our freedoms. History has shown that in times of war, the courts—even the U.S. Supreme Court—have upheld restrictive laws passed by our government that abridge rights protected by our Constitution. For example, William Rehnquist, Chief Justice of the U.S. Supreme Court, wrote in his book All the Laws But One, “It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime.”
It must have been with such draconian reasoning in mind that a nascent American Congress passed the Sedition Act on July 14, 1798, which stated that any treasonable activity, including the publication of "any false, scandalous and malicious writing," was a high misdemeanor, punishable by fine and imprisonment. This law was aimed at suppressing political protests and was, thus, a direct frontal assault on our First Amendment freedom of speech.
Under the color of that law, Upton Sinclair, author of the classic novel The Jungle, was arrested in 1923 for reading the Bill of Rights at a rally for striking dockworkers. Around the same time, Roger Baldwin, founder of the ACLU, was arrested for publicly reading the U.S. Constitution. Many other conscientious objectors to the government’s actions found themselves silenced, sentenced, and “sent up the river.”
Despite the many attempts by government leaders to claim broader powers for themselves during wartime, the Constitution allows for only one emergency power: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (Article 1, Section 9, Clause 2). Obviously no such cases have arisen in recent years, nor do any now exist.
Those who wrote our Constitution sought to ensure our freedoms by creating a document that protects our God-given rights at all times, even when we are engaged in war. It is a document that has since been used as the model for so many other nations seeking freedom. We must remember that it is how we conduct ourselves in times of peril and war that reflects the values we truly embody. The ideals of freedom that have made this nation great—indeed, all the freedoms guaranteed in our Bill of Rights—are the same freedoms we must guard and protect at this critical time.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute and author of Grasping for the Wind. He can be contacted at [email protected] Information about the Institute is available at www.rutherford.org