Poking Holes in the Constitution

26 November 2001

The biggest menace to the personal security of Americans may not be terrorism but government's response to it.

The administration has already rammed through an antiterrorism bill that allows normal due process and privacy protections to be waived if a prosecutor thinks some potential suspect has some remote connection to terrorism. Now the president has decided that terrorism suspects can be tried before special military tribunals, which do away with the inconvenience of constitutional niceties.

The CIA, which is not supposed to use third-degree tactics itself, has been collaborating with foreign governments all too willing to use torture, such as Egypt and Albania. The CIA has knowingly turned terrorism suspects over to the agents of such governments to keep its own hands nominally clean.

Here at home, at least a thousand legal foreign residents have been rounded up and detained, often without formal charges being lodged against them. This would be illegal for US citizens. But noncitizens, even legal permanent resident aliens, are said to be in America at the government's sufferance. No ordinary due process for them.

Law-abiding Americans are supposed to be reassured. We, after all, are not terrorists. These extraordinary measures are directed at them, not at us. But these waivers of constitutional rights tend not to stay bottled up. The Constitution was written not to protect the guilty but to protect the innocent. Hundreds of entirely innocent bystanders have already been rounded up in FBI and INS dragnets.

History shows that special Star Chamber tactics justified by war or Cold War conditions slop over and harm ordinary people because zealous police and prosecutors often overreach their bounds and often make mistakes. History also shows that even in the United States and other democracies, police agencies often yield to the temptation of using third-degree tactics unless they are restrained by laws and judges.

Even before Sept. 11, government was eroding a variety of rights in the name of fighting crime, drugs, or terror. Legal foreign residents lost due-process protections under Clinton-era legislation. Both parties have supported summary justice measures allowing the seizure of property of drug suspects, with the police department getting to keep the loot.

Remember the Rodney King beatings? Until the rulings of the Warren Supreme Court protecting the rights of criminal suspects, beatings and coerced confessions, often false confessions, were common. During the Cold War, the FBI and CIA mounted secret operations to disrupt constitutionally protected dissent, much of it surrounding the Vietnam War.

There is no evidence that any of this made us any more secure as a nation. Fifteen years after the United States ignominiously withdrew from Vietnam, supposedly a crucial domino in the battle against world communism, the Soviet Union collapsed largely from internal rot.

Nobody has shown why constitutional criminal justice is powerless to investigate and bring to justice people accused of terrorist activities. One stated concern - that public trials might expose intelligence sources and police methods - speaks volumes. The framers of the Constitution were all too familiar with police methods. They lived in the era of the Star Chamber in England.

That's why they mandated speedy and public trials before independent judges. Even without special legislation, current law allows for sealed testimony in special circumstances to be divulged to a judge but not to be made public. Narrowly drawn extensions of this process can be used in cases when a judge - not a prosecutor - certifies that probable cause exists to believe that a terrorist crime has been committed.

The other stated concern - that putting terrorists on trial would risk making martyrs of them - is more a statement of our own insecurity in the court of world public opinion. The Israelis did not flinch from putting Adolf Eichmann on trial for fear of fanning the flames of anti-Semitism, nor did the United States hesitate to try Nazis at Nuremberg. If an international criminal court is good enough for Slobodan Milosevic, it should be good enough for Osama bin Laden.

Police and prosecutors, in democracies and dictatorships alike, tend to see constitutional strictures as inconveniences. That's why criminal justice and the protection of individual rights are too important to be left to the sole discretion of police agencies.

Americans have surmounted worse challenges than this one without giving up liberties. It is hard to know which is more frightening - the administration's wish list of extraconstitutional shortcuts or the resounding lack of opposition from most members of Congress. Long after al Qaeda and bin Laden are defeated, Americans will suffer from this rush to militarize justice.

Robert Kuttner
Published in the Boston Globe ©: 2001 Globe Newspaper Company.

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