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The War on America's Principles

By Tom Campbell
Mercury News
Posted on Wednesday September 17, 2003

The anniversary of September 11 has brought proposals for expanded law enforcement powers. America needs to come face-to-face with what it is already doing.

America is keeping people in jail without telling them with what crime they have been charged. They’re interrogated regularly without access to a lawyer. There is no proposed end to their incarceration. America is arresting other people and keeping them in jail pending their being deported.

These people are given a hearing, but they’re not shown all the evidence given to the judge by the government. They stay in jail until some other country will take them in—which, in some cases, has been more than three years. (The first group is in Guantanamo; but the second has included individuals kept in jail in New York, Washington, Florida and Los Angeles.) The government has now proposed that searches be conducted of private homes, papers, e-mails and correspondence without having to go to a judge for a warrant.

The government’s theory is that enemy soldiers can be taken prisoner and interrogated on a battlefield, so why not those taken prisoner in Afghanistan and Iraq and moved to Guantanamo? It argues that being kept in jail is not a criminal punishment since deportation proceedings are, technically, civil in nature.

To defend its new proposal, the government argues that such searches can take place already in Medicare investigations (though these searches are directed to providers who voluntarily choose to receive Medicare reimbursements).

The war on terrorism does not require a war on our own freedom as well. What constitutes the core of our freedom, the essence we will not yield, even when the government demands more powers to keep us safe?

The test is best expressed in terms of what makes us proud to be Americans. Yes, there are battlefield emergencies, and, yes, every rule can be pressed to a breaking point; but, in general, and as a matter of what makes us Americans, we don’t put people in jail without giving them a fair hearing to defend themselves. We don’t interrogate people month after month without access to a lawyer and without charging them with a crime. We don’t intercept people’s mail and read it without a warrant based on probable cause, issued by a neutral judge.

Some Americans may be willing to trade freedom for security. (Benjamin Franklin famously advised that a people willing to make that trade deserved neither.) If we are to make that trade, however, it should be clearly admitted, not passively accepted without inquiry.

I believe the trade would be wrong, and unnecessary. For example, during World War II, we did try the Nazi saboteurs in a secret trial, but we tried their American collaborators in a regular public trial, and convicted them without compromising any state secrets. We survived the Cold War, which threatened all of us with instant death, without a USA Patriot Act. In the American Civil War, the U.S. Supreme Court forbade the use of military tribunals where civilian courts were available instead.

Looking back on J. Edgar Hoover’s FBI, few admire today his opening of Dr. Martin Luther King’s mail, and none claim he made our country safer by doing so.

I recently heard a Bay Area congresswoman blame everything on Attorney General John Ashcroft. Yet she had voted for the USA Patriot Act, which allowed some of the very practices I described. I’ve heard defenders of one of our two U.S. senators claim she “had to’’ vote for the USA Patriot Act, or the Republicans would have used it against her at the next election.

What’s wrong with a member of Congress saying, “I won’t vote to violate our country’s fundamental freedoms,’’ and trusting the people to decide at the next election? And what is worse—losing an election, or voting to surrender our country’s principles?