Civil Liberties Make Us Safer
Commentary
September 23, 2001
Americans are entitled to their grief, anger and anxiety.
As we try to understand what has happened to our nation and what we should
do next, now is also the time for calm deliberation.
President Bush needs us to be strong, just as we need him to be prudent
and effective. The Congress needs to hear from us, just as we need
them to take their constitutional duties seriously. We’re in uncharted
waters.
No one knows exactly what will work to advance the immediate goals that
we Americans share: heightened security, accountability and punishment
for the guilty. Obviously, if some one says they have all the answers
or can make us completely safe, suspicion is in order.
Americans, in and out of the Congress, will have to evaluate carefully
“anti-terrorism” proposals that may have an impact on the civil liberties
that protect our Freedom. Fortunately, Representative F. James Sensenbrenner,
Jr. (R-Wis.) and Senator Patrick Leahy (D-Vt.), have said they want to
hold hearings on Attorney General Ashcroft’s proposals. Others will
have proposals, too. Sensenbrenner is reported to have said that
concerns about the loss of privacy and liberty were “legitimate.”
Governments and citizen groups should determine whether national, state
and local authorities are effectively using the extensive security and
investigative powers they already possess before rushing to create new
powers. And if the existing security measures are found to be inadequate,
we must understand why and remedy such problems.
The Congress should not adopt measures, such as “roving wiretaps,” for
the sake of convenience. Judicial oversight and review should not
be seen as an obstacle. We know that judges give law enforcement great
discretion when it comes to terrorism, but that doesn’t mean making a
case for a warrant before a judge doesn’t provide some measure of protection
against mistakes. Ask Richard Jewell, the man wrongly accused of
the bombing at the Olympics in Atlanta. Professional law enforcement
in reality, if not on TV, is effective because it is hard work.
We can reconcile civil liberties and security, if we wish. There
is much that can be done.
Take some of the suggestions that have been made regarding airport security.
The American Civil Liberties Union has suggested a number of measures
to enhance airport safety such as: increased training for security personnel,
heightened screening of airline and airport security personnel, strict
control of secured areas of airports, measures to improve security at
foreign airports, a neutral entity to which passengers can report lax
security procedures and luggage matching of all passengers.
Implemented properly these measures will enhance security without damaging
our rights.
On the other hand, not every technological solution makes sense and will
enhance safety. Facial recognition technology is notoriously inaccurate.
One of the government’s own studies, for example, showed a 43 percent
error rate of false negatives – a failure to properly identify posed photographs
of the same person taken 18 months apart.
And, the ACLU opposes the use of profiles based on race, religion or
ethnicity to subject some passengers to intrusive questioning and searches.
Profiles targeting those who may appear to be Arab-Americans or Muslims
are not only unfair, but are an ineffective means of determining who may
be a criminal. Profiling also may give some a false sense of security.
To the extent that “anti-terrorism” proposals mean military action then
not only the President, but the Congress must do their duty. Congress
should insist that any presidential decision to expand the scope or duration
of military involvement into a “wider war” comply with the strictures
of the War Powers Act. Authored by the late Milwaukee Congressman
Clement Zablocki, the Act sets forth the requirements of consultation,
reporting and consent within 60 days of the initiation of hostilities
or the deployment of troops where hostilities are likely.
Our history indicates that when we engage in military action that free
speech will suffer. Peaceful dissent is protected by the First Amendment
for good reasons. In our democracy debate leads to a better understanding
of government policies and hence better policies. The media bears
a special responsibility to ask the hard questions.
Duties, responsibility, be strong, be prudent, should this, should that!
There’s the temptation to say enough already. Times that try our
souls are difficult enough.
We can find a measure of reassurance – and guidance – in the words of
Supreme Court Justice Thurgood Marshall, who said in a 1972 opinion that
resonates today:
“This is a country which stands tallest in troubled times, a country
that clings to fundamental principles, cherishes its constitutional heritage,
and rejects simple solutions that compromise the values that lie at the
roots of our democratic system.”
Freedom is more than just a goal, it is the bulwark of our democracy
and the spirit that lifts individuals and families in countless ways.
It makes us safer and stronger. It makes us feel better.
Chris Ahmuty
ACLU of Wisconsin
Executive Director
This commentary
appeared in the Milwaukee Journal Sentinel on Sept. 23, 2001.
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