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Jewish World Review Oct. 8, 2001 / 21 Tishrei, 5762

Nat Hentoff

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Coming: a national I.D. card? -- SOON after the ruthless terrorism of Sept. 11, Justice Sandra Day O'Connor told New York University law students and faculty, "We're likely to experience more restrictions on our personal freedom than has ever been the case in our country."

But she took care to add -- quoting former British Prime Minister Margaret Thatcher -- "Where law ends, tyranny begins."

As we see the beginnings of government restrictions on our freedom in the indeterminate war against a largely invisible enemy, I thought of a familiar description of tyranny -- in history and science fiction. Tyranny is when the state can -- whenever it wants -- know where you are, what you're doing, and from collateral information, what you're thinking.

Justice Louis Brandeis warned of that kind of government omniscience in his dissent in the first wiretapping case to reach the Supreme Court -- Olmstead vs. United States (1928).

The majority of his brethren ruled that the Fourth Amendment was not violated by this new surveillance technology because no government agent had actually trespassed "upon any property of the defendant." The "insertions were made in the basement of a large office building" elsewhere.

Brandeis, a deep thinker, predicted, "Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home."

Two nights after the terror attack, the Senate, after a mere 30 minutes of debate, attached an amendment to an appropriations bill making it much easier for the government to wiretap computers without having to go to individual courts to get multiple search warrants.

The government will now be able to access suspects' bank records, credit card purchases and whatever information they search for on the Internet. Also, through the attachment of its Carnivore computer to Internet servers, investigators will be able to search e-mails for suspicious contents. In view of the broad definitions of terrorism in likely legislation -- particularly "support of terrorism" -- the number of suspects may well be huge.

And if certain kinds of denunciations of government tactics in this war are regarded as "support" of terrorism, the range of suspects could include libertarian conservatives and pacifists who were "persons under suspicion" in previous American wars.

Moreover, as justified fear of the murderous self-appointed defenders of the one truth faith increases, we may find ourselves ordered to carry a National I.D. card, equipped with the ability to provide the government with extensive information on you and where you go.

In England, the initial source -- after much struggle -- of some of our liberties guaranteed by the Bill of Rights, the Labor Government is thinking seriously of mandating that everyone carry a National I.D. card as a shield against terrorist attacks not only by the Irish Republican Army but also by this new conspiracy of fanatical terrorism with roots around the world.

John Wadham, director of Liberty, a civil liberties organization in England, has told The New York Times that the advent of a National I.D. card "means you have to use the police to stop vast numbers of people on the street, to detain large numbers who aren't carrying a card or in some way are deemed to arouse suspicion." In this country, that may mean Sikhs or people of mixed ancestry, or scruffy anti-government demonstrators in public parks.

Since England does not have a written Constitution, a government with a strong majority in Parliament -- as is presently the case -- can institute a National I.D. card, whatever courts may say. The British, after all, have been conditioned to certain incursions into their liberties as a result of the killings by IRA "freedom fighters."

We do have a written Constitution, but now when we are told by the administration that the terrorists may well strike again in unexpected places and ways, I expect that a majority of Americans would not resist being intimately and continually connected to the government by this powerful tribute to information technology.

I know that this is decidedly unlike any other way we have had to fight. But I also know, as Judge Learned Hand said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no court, can even do much to help it."

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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