Murray Polner: Review of Mark Sidel's More Secure Less Free? Antiterrorism Policy & Civil Liberties after September 11 (Michigan, 2004)
Remember all those films when menacing police agents in trench coats and foreign accents demanded English-speaking good guys and gals show them their “identity papers”? Well, if Tony Blair gets his way, Britons will be issued national identity cards next year. And given our own domestic “war on terrorism,” it’s reasonable to wonder if the same thing or worse can happen here too.
A recent New Yorker ad put it this way: “The Disappearing Civil Liberties Mug,” a coffee cup labeled “Bill of Rights”: “Pour in some coffee...see your civil rights disappear.”
0verreaction or just marketing hype?
Granted, there is a delicate balance between maintaining security and preserving civil liberties. Even so, the post-September 11th, post-Iraq invasion chauvinism, simplistic sloganeering, and mass media conformity, have not been an anomaly. 0ur freedoms have always been assailed and severely undermined and the rule of law cast aside in real or imaginary crises.
From John Adams’s infamous Sedition Act, to Lincoln’s suspension of the writ of habeas corpus and the subsequent jailing of thousands of dissenting civilians, to Wilson’s Espionage Act in World War I, to Franklin Roosevelt’s roundup of 110,000 Japanese, most of whom were American citizens, to the many outrages of the Cold War, McCarthyism, to Nixon and Hoover’s efforts to harass and convict opponents of the draft and the Vietnam War, and on to Reagan’s Central American proxy war and the attempts to ruin opponents, governmental attacks on freedom have been the norm.
Now we have the Patriot Act -- a law drawn up in haste after September 11 and unread by virtually every member of Congress. Passed on 0ctober 27, 2001, it is obvious that panic and political opportunism, not reason or respect for constitutional rights, ruled the day.
In this slender, fact-packed and worrying volume, Mark Sidel, who teaches law at the University of Iowa, takes a careful and searching look at the unprecedented terror attack of 2001 and its impact. He is especially concerned about the Patriot Act’s coming “second wave” of legislation which, he says, will increase surveillance on resident aliens, information gathering and profiling of all Americans, and in general invade the privacy and freedom of Americans in the name of securing the country from further attacks. Sidel calls it"America the Watched."
To be sure, much of what is being done in the name of defense against another attack on civilians is justified. At the same time, though, many other actions taken since September 11 will inevitably create severe problems. How to sort out the necessary from the hysterical and vindictive is the real issue. And the worse the international situation gets, rest assured the more restrictive will laws curtailing our freedoms become.
Americans opposed to the invasion of Iraq have already felt the brunt of federal scrutiny. For example, a leaked FBI memo in November 2003 sent to all police agencies revealed that, as it had during the sixties, the FBI has been advising police to keep close tabs on antiwar groups throughout the country. Political espionage has been carried out in any number of American cities.
In Des Moines, a federal prosecutor subpoenaed Drake University, a chapter of the National Lawyers Guild and four pacifists attending an anti-Iraq War meeting at Drake for an appearance before a grand jury. Their crimes? Meeting to organize a demonstration against the war. The subpoena demanded that the university hand over “all documents or recordings which identify persons” at the conference. Sidel calls it “perhaps the broadest subpoena seeking political information to an American university in five decades.” A federal judge then issued a gag order, banning anyone associated with Drake from mentioning the subpoena. 0nly howls raised by Iowa’s two senators, the Des Moines Register, among others, forced the prosecutor to beat a rapid, if unexplained, retreat.
At the University of Texas Law School in Austin, army intelligence agents tried to spy on a conference discussing Islam and women and demanded a list of people attending. Protests followed and the Army Intelligence and Security Command had to apologize.
In the proposed Domestic Security Enhancement Act of 2003 (nicknamed Patriot II), even U.S. citizens “suspected of terrorism” could be whisked away for up to fifteen days without anyone telling the courts or lawyers. Wiretapping and surveillance minus court-approval would be allowed. Even scarier, Patriot II would permit capital punishment for various protests which"involve violent acts or acts dangerous to human life." Sidel dryly notes the provision could even implicate a Greenpeace operation “if a death resulted from such protest.” There are even more ominous sections in this dangerous bill that would radically alter the meaning of the First Amendment.
The best way to resist illegal government policies, proposes Sidel, is to organize liberal-conservative-libertarian coalitions eager to protect their right to organize, educate and protest, a development already underway. Alliance building, he writes, now extends beyond the ACLU and its supporters. Libertarians and conservatives alike have recognized some of the dangers. The fateful, but happily still abortive 0peration TIPS, for example, brought scathing criticism from the Cato Institute, the Rutherford Institute, David Keene and the American Conservative Union and Phyllis Schlafly of the Eagle Forum. Dick Armey and Bob Barr have joined the ACLU as consultants.
But is Sidel too optimistic in hoping left-right alliances can submerge their differences and oppose restrictive federal government laws and regulations and still stand together in our troubled time? No one knows, of course. But it’s a critical question since the issue of security versus freedom will be fiercely debated for years, which only makes Sidel’s More Secure Less Free? essential reading.
The outcome is far from certain.
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