373. "America's Battle of Extremes on Safety and Rights." The Boston Globe (December 18, 2001) p A23.
The escalating confrontations between the champions of public safety and civil rights prevent us from seeing numerous middle-of-the-road public policies whose merits any reasonable person would recognize in a heartbeat.
For weeks both the administration and its critics have been conducting themselves as if they were in a court of law. It is assumed that out of extreme advocacy by both sides, justice and truth will arise.
We hear civil libertarians claiming that the new public safety measures are shredding the Constitution (Senator Patrick Leahy) and have undermined our most cherished rights (the ACLU). The government responds that without these measures we shall be easy marks for terrorists carrying weapons of mass destruction and that critics only aid terrorists (Attorney General John Ashcroft). Both sides are pulling the courtroom trick of presenting highly emotive horror stories to sway the jury of public opinion.
If the advocates of civil rights and those of public safety would stop butting heads, we would see all kind of ways to advance our security while minimizing intrusions on our liberty. Take the recent relaxation of rules that prohibited the FBI to conduct surveillance on political and religious organizations.
It was absurd to have a situation in which terrorist cells could meet in a place of worship without any concern that their plotting might be overheard by public authorities. Or, that if they called their cell a political club they knew they couldn't be the subject of surveillance.
Mosques are a major ground for breeding and recruiting terrorists. Indeed, they were the source for some young men who left Britain to fight with the Taliban.
But, you say, there is no evidence that this is happening in the United States. No wonder. Until recently, we were not allowed to cock an ear or take a look-see.
At the same time, no one wants to go back to the pre-1970s era, before the Church Commission imposed strict limitations on the FBI's surveillance. In those days, the FBI infiltrated all kinds of civil rights and politically legitimate but dissenting groups. (As a peacenik I was on the target list.) But this was a very different FBI, one run by J. Edgar Hoover, accountable to no one, feared by presidents and Congress because of files he kept on their personal lives and because he succeeded in building a public myth around himself.
To ensure that the FBI will not slip back into its old habits, we need a special oversight of its new surveillance powers. Whether this should be provided by the General Accounting Office, a subcommittee of the congressional intelligence committees, or some other body is a matter of small print. However, the public should get regular reports about the number of wiretaps granted and whether they were found to be legitimate by some outside body. In an imperfect world, this is about as close as we can get to enhancing safety and protecting rights.
The same holds for the trial of terrorists by military tribunals. There is a clear need to avoid disclosing in open court our sources and methods. Indeed, there have been several cases in which we let American spies bargain down their sentences only so they would plead guilty and we would not have to take them to open court. Terrorists should not benefit from threatening us by demanding such trials.
At the same time, there is no reason why those tried in these tribunals should not be given a miliary advocate cleared for classified material. And there is no reason to refuse a terrorist convicted by a miliary tribunal the right to appeal his sentence to a supra-military court.
More generally, we should stop pretending that any recalibration of our rights in view of the changed world in which we must defend our homeland amounts to an attack on the Constitution. If one refuses to treat the Constitution as a living document and insists on going by the text, one finds that non-Europeans are not counted as full persons and that privacy is not even mentioned.
Moreover, as Judge Richard Posner recently reminded us in an essay in the Atlantic monthly, most rights were originally formulated in general terms in the Constitution. Their meaning has always been subject to interpretation and reinterpretation.
At the same time, mindlessly waving aside all claims that might go overboard for safety's sake is not warranted either. Societies have no precise control mechanisms; they tend to oversteer. Hence, all major corrections in the delicate balance between public safety and civil rights typically require corrections themselves.
There was good reason to rush the legislation expanding government authority, given the fear of more attacks. But now there is time to revise and fine-tune them. However, we shall be able to see the middle of the road only if both sides stop trying to push the other one over the edge.
Amitai Etzioni is University Professor at George Washington University and author of "The Limits of Privacy."