THE WAR on terrorism declared by our government is part of a profound struggle between rationalism, human liberty, and modernity on the one hand, and fundamentalist religion and traditionalism on the other. It is, in short, a war between the Enlightenment and the medieval world. Though US policy in Arab and Muslim societies is hardly above reproach, it should be obvious to all Americans that the West cannot afford to lose the war against terrorism — any more than we could afford to lose to Nazism or global communism.
In fighting this war, though, we would be well advised not to trample too heedlessly on the Bill of Rights — emblematic, as it is, of the Enlightenment itself, with its emphasis on human liberty and autonomy. During virtually every dangerous moment in our history we have taken actions that we later came to regret: the Alien and Sedition Acts, used by President John Adams in the 1790s to imprison domestic critics and expel foreigners; the suspension of habeas corpus in the 1860s, during the Civil War; the Palmer raids against leftist groups during and after World War I, around 1920; the incarceration of Japanese-Americans during World War II, in the 1940s; the anti-Communist witch hunts of the McCarthy era, in the 1950s; and the abuses of J. Edgar Hoover’s FBI, which waged a secret, unconstitutional campaign of surveillance and disruption against the civil-rights and antiwar movements of the 1960s.
Then there was Richard Nixon, who occupied a category all to himself. The break-in at Democratic Party headquarters at the Watergate Hotel, the pilfering of antiwar activist (and Pentagon Papers leaker) Daniel Ellsberg’s psychiatric records, the use of the Internal Revenue Service to harass political enemies — Nixon’s presidency was a constant, ongoing war against liberty. It was a war that ultimately resulted in his near-impeachment and, in 1974, his resignation.
Fortunately, to judge from the outcry by civil libertarians during the past few weeks, it appears that we have learned from the past. Unfortunately, we may be doomed to repeat it anyway. Support for freedom diminishes in the face of danger. What takes its place is a desire for safe, non-threatening conformity. It’s understandable, given the current crisis, that President Bush is enjoying an unprecedented 90 percent approval rating (according to a CNN/USA Today/Gallup poll). But it’s chilling that the six percent who continue to disapprove of Bush’s performance are being singled out as unpatriotic or worse.
Consider what happened to Bill Maher. Last week, on his ABC program, Politically Incorrect, Maher said something, well, politically incorrect — namely, that in some past military campaigns, US forces " have been cowards lobbing cruise missiles from 2000 miles away. " He continued: " That’s cowardly. Staying in the airplane when it hits the building, say what you want about it, it’s not cowardly. " The outcry was so fierce that Maher apologized, saying his views " should have been expressed differently " and that he should have aimed the " coward " charge at politicians rather than American troops. But that didn’t stop Sears, Roebuck and FedEx from canceling their advertising, thus threatening the future of his show. Obviously, advertisers have a First Amendment right to withdraw their patronage; but in this case, it’s the power of corporate money, not ideas, that is at issue. And that was just the beginning.
Clear Channel Communications, which owns the country’s largest chain of radio stations, reportedly sent out a memo urging that its affiliates not play as many as 150 songs that could be considered offensive under the circumstances — including John Lennon’s " Imagine, " which Neil Young managed to perform movingly and without controversy during last Friday’s national telethon.
Massachusetts congressmen Marty Meehan and Richard Neal offered some mild criticism of Bush’s performance in the hours immediately after the bombing — and, according to Boston Globe columnist Scot Lehigh, Meehan received threats serious enough to warrant police protection.
In Texas, the FBI shut down Arabic Web sites, prompting, according to Reuters, charges of conducting an " anti-Muslim witch hunt. "
In Baltimore, the Sun reported that anchors and even a weather forecaster at one TV station were required " to read messages conveying full support for the Bush administration’s efforts against terrorism. " When staffers objected, the message was changed to indicate that it came from " station management. "
In Boston, a caller to WBUR Radio’s The Connection last week said he’s flying the American flag not just to demonstrate his patriotism, but to ward off the animus of those who might think that he, an olive-skinned Italian-American, was an Arab.
Televised comments by those geriatric poster boys for religious intolerance, the Reverends Jerry Falwell and Pat Robertson, resulted in a double-reverse back flip that was almost funny. Falwell attributed the terrorist attacks to God’s wrath, blaming the ACLU, feminists, abortion-rights supporters, and lesbians and gay men, and saying, " God continues to lift the curtain and allow the enemies of America to give us probably what we deserve. " Responded Robertson: " Jerry, that’s my feeling. " The once-influential hatemongers’ comments touched off a firestorm of criticism, prompting Falwell to apologize, layering irony upon insult. Not only did his and Robertson’s rhetoric reveal an anti-modernist mindset similar to the terrorists’ (minus the violence), but by being forced to say " I’m sorry, " Falwell himself became a victim of the same cultural clampdown on free speech that had ensnared Bill Maher and Marty Meehan.
Indeed, the threat posed to the First Amendment right now is not so much official censorship — that is, bans enacted by the government — as self-censorship, a phenomenon that is far more dangerous in an age of media conglomerates than it would have been in an earlier time. Maher can’t speak his mind if advertisers are going to boycott his show, which must turn a profit for ABC in order to stay on the air. A list of songs banned by one radio station is of little consequence. But when Clear Channel suggests that its nearly 1200 radio stations consider not playing certain songs, that’s downright chilling.
" We’re in the very murky realm of self-censorship, " says Marjorie Heins, director of the Free Expression Policy Project at the National Coalition Against Censorship. Institutions such as ABC and Clear Channel " have their own First Amendment rights to decide what to produce, " she says. " This only gets worrisome if this gets pervasive and widespread and goes on for a long period of time. Hopefully they’ll come to their senses. "
CONGRESS HAS recent experience in how not to react to a terrorist attack. A year after the Oklahoma City bombing of 1995, Congress passed the Anti-Terrorism and Effective Death Penalty Act, a grotesque piece of legislation that accomplished two things. It severely curtailed the writ of habeas corpus, making it far more difficult for convicted criminals — even those awaiting the death penalty — to present new evidence that they’d been wrongly convicted. And it allowed the use of secret evidence in deportation cases against immigrants, which writer and civil libertarian Nat Hentoff has rightly called a " denial of fundamental due process. "
It’s notable how little any of it had to do with what actually happened in Oklahoma City. Keep that in mind. Over the past few years, a number of proposals to curtail fundamental freedoms in the name of security have festered in back offices in Washington and elsewhere, waiting for the right time to be pulled out of a drawer and sprung upon an unsuspecting public.
One of those times came on the evening of September 13, just two days after the attacks, when Senators Orrin Hatch (R-Utah) and Dianne Feinstein (D-California) brought an amendment to the floor that would make it far easier for government investigators to snoop on computer users. Senator Patrick Leahy (D-Vermont) protested that the bill — which few had had time even to read — was overly broad and fuzzy. For instance, the bill would add " terrorism " to the list of crimes for which a person could be investigated. That would seem to be a no-brainer, except, as Leahy pointed out, the bill provided no definition of terrorism. " I guess some kid who is scaring you with his computer could be a terrorist and you could go through the kid’s house, his parents’ business, or anything else under this language; it is that broad, " Leahy observed. He added: " Maybe the Senate wants to just go ahead and adopt new abilities to wiretap our citizens. Maybe they want to adopt new abilities to go into people’s computers. Maybe that will make us feel safer. Maybe. And maybe what the terrorists have done made us a little bit less safe. Maybe they have increased Big Brother in this country. "
Despite Leahy’s opposition, the amendment passed on a voice vote. The appropriations bill to which it was attached was approved unanimously.
The situation in Washington right now is in flux. Though few doubt that the Hatch-Feinstein amendment would pass the House, it has been largely superseded by a bill filed last week by Attorney General Ashcroft — the so-called Anti-Terrorism Act of 2001, or ATA. The bill is being considered this week — by Senator Leahy’s Judiciary Committee, fortunately — and could change considerably before it emerges from the legislative sausage-maker. Nevertheless, it has been the subject of wide-ranging opposition from groups that normally don’t get along: like-minded organizations such as the ACLU, the Electronic Frontier Foundation (EFF), and the Electronic Privacy Information Center (EPIC) have been joined by conservative groups such as Phyllis Schlafly’s Eagle Forum and the Gun Owners of America.
Among the more controversial provisions of the Ashcroft legislation are those aimed at bringing wiretapping laws into the digital age. Theoretically, this makes sense: investigators’ ability to track crime should not be diminished by technological advances. Yet the legislation could give investigators a great deal more power than they have today. Under current law, for instance, officials can obtain the phone numbers called by a suspect, even without probable cause. Under ATA, investigators would be able to obtain e-mail addresses and even the Web locations a suspect has visited — information that is considerably more revealing. The role of judges in approving such wiretaps would be diminished, thus weakening an important safeguard. " Roving " wiretaps, which follow a suspect from phone to phone rather than being placed on just one phone, would be permitted — probably a sensible move, but open to abuse. The legislation could also make it easier for federal investigators to use a controversial piece of software known as " Carnivore, " which would allow them to intercept enormous quantities of e-mail and other information from Internet service providers, even from innocent customers not suspected of any wrongdoing. Customers would have no choice but to trust the feds not to exceed the scope of their warrants. By contrast, traditional wiretapping targets just those customers covered by a warrant granted by a judge. It also requires the intervention of the phone company, which, at least in theory, provides an extra layer of protection.
