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Jewish World Review Sept. 9, 2002 / 3 Tishrei, 5763

Nat Hentoff

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Sept. 11: Will we stay free? | In my neighborhood near the World Trade Center, for weeks after the horrifying terrorist attacks, there were letters, posters and photographs of the missing on the walls of stores, apartment buildings and any available space. These postings pleaded for any information about their whereabouts. But as we now know, nearly all were permanently missing.

Whenever I see mention of Sept. 11, I see again those desperate messages and remember what Colin Powell said soon after the murderous attack, calling it "a war against civilization." The killers' ardent goal is to return the world to the darkest of the dark ages, where there is no sanctity of life, no individual freedom of conscience and no freedom of speech.

On Sept. 11, and since, the immediate target of these defilers of the letter and spirit of liberty has been the United States. To them, we -- in the oldest, actually functioning constitutional democracy in the history of the world -- are the very embodiment of their Satan.

In our war of survival against these terrorists, with the fate of many other nations also at stake, our leaders have been pledging for the past year that everything they are doing to safeguard our security, and our very lives, is being done "within the bounds of the Constitution."

But citizens across the political spectrum are becoming increasingly fearful that the Bush administration -- with the compliant bipartisan silence of most of the congressional leadership -- is, however well-intentioned, unwittingly subverting our very fundamental American liberties.

Under the USA Patriotic Act, we are subjected to unprecedently extensive electronic surveillance -- on and off the Internet -- with minimal judicial review. The FBI now has the power to track every keystroke a person under suspicion makes on a computer. And the FBI can now compel librarians and bookstore owners to reveal the names of books bought and borrowed by Americans who might be, under exceedingly loose definitions, involved in domestic terrorism.

Even now, two American citizens are being held incommunicado in military prisons in the United States without any charges against them and without access to lawyers. Federal judges are being told by the Justice Department that the judges do not have any right to determine whether due process -- fairness, the core of our system of justice -- is being accorded these prisoners.

The administration insists that these American citizens, Yaser Esam Hamdi and Jose Padilla, can be held indefinitely. As Harvard University law professor Lawrence Tribe said on ABC TV's "Nightline": "The executive branch is taking the amazing position that, just on the president's say so, any American citizen can be picked up, not just in Afghanistan, but ... on the streets of any city in this country ... just because the government says he's connected somehow with the Taliban or Al Qaeda. ... That's not the American way. It's not the constitutional way."

Worse yet, as the Aug. 8 Wall Street Journal reported, Ashcroft is planning to set up camps for more "enemy combatants" who also will be held without charges or meaningful access to the courts. A high-level committee will advise Ashcroft on which of us will be deprived of our constitutional rights indefinitely. And, according to Georgetown University law professor Jonathan Turley in the Los Angeles Times, the attorney general "hopes to [go further and] use his self-made 'enemy combatant' stamp for any citizen he deems to be part of a wider terrorist conspiracy." The Justice Department has told Turley it will not deny The Wall Street Journal's story.

But more and more American citizens, including more and more conservatives, are rising in concern about what is happening to the Bill of Rights. Teachers, retirees, lawyers, students and doctors are forming Bill of Rights Defense Committees. Started last February in Northampton, Mass., at least 30 towns and cities across the country now have such committees, which alert their neighbors and their representatives in Congress of the need to reign in Ashcroft, his legal advisers and the president, who gives them unqualified support.

In Ann Arbor, Mich., City Councilwoman Heidi Herrell tells ABC News Online: "At times like these, I think our constitutional rights are even more important. There have been times when we relaxed these things -- the McCarthy Era, the 1960s civil rights struggle and the detention of Japanese-Americans in World War II. We look back at those times with shame. ... I think this will be another time we look back with shame. That's what I fear."

So do I.

In the Federalist Papers, James Madison warned that "the accumulation of powers" in only one branch of government is "the very definition of tyranny." Is that what we're fighting for on the anniversary of Sept. 11?

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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