LIBERTY: ANTITERRORISM LAWS MUST HONOR FREEDOM

When Congress takes up anti-terrorism legislation next week, it should not
allow concern for the security of Americans to diminish their liberties.

A surprisingly broad coalition of civic and religious groups has lined up
to endorse a statement by the American Civil Liberties Union defending
constitutional principles and urging Congress not to act rashly.

Their concern, and ours, is not motivated by any inclination to treat the
threat of terrorism with anything other than the utmost seriousness.
Rather, it is based on the knowledge that laws enacted to deal with one
emergency remain in place after the emergency has lessened, to be used in
circumstances very different from those that inspired the law.

The campaign against organized crime, for example, was the justification
given for RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970.

Organized crime was, and remains, a serious problem. But the law is so
broadly drafted that it can even be used against a political campaign that
trips inadvertently over the complicated rules of campaign finance.

Many of the proposals drafted by the U.S. Department of Justice would
extend to terrorism - or in some cases, to all criminal activities - the
dubious legal tools crafted for the war on drugs. The forfeiture of
property on mere suspicion, in cases where no one has ever been convicted
of a crime, perhaps never even charged with one, is one example.

Trafficking in illegal drugs is a serious problem, of course, but the
excesses of the War on Drugs are also a serious problem. We shouldn't be
stampeded into expanding such tactics to vast additional areas of American
life without clear and convincing evidence that they are both necessary and
effective.

Fortunately, members of Congress appear to understand this. Sen. Pat Leahy,
D-Vt. chairman of the Senate Judiciary Committee, is working on an
alternative package more respectful of civil liberties.

"If the Constitution is shredded, the terrorists win," he said Thursday.

We should also take seriously the possibility that if someone is convicted
of terrorism-related acts on the basis of laws subsequently deemed
unconstitutional, the courts would overturn the conviction.

Provisions regarding immigrants are especially troubling. We already have a
law allowing foreign nationals to be detained, and eventually deported, on
the basis of "secret" evidence they are not allowed to see. Because of a
few celebrated cases, we know that law has been abused; though not how often.

Now the Justice Department proposes that the U.S. attorney general be
authorized to do the same without presenting any evidence at all to a
court. We understand the problem: presenting evidence could compromise an
ongoing intelligence operation. But we also see the risk.

Americans' privacy would also be eroded by expanding authority for
warrantless searches of their communications equipment.

The chief contribution to the tragedy of Sept. 11 was not the absence of
these laws; it was the failure to carry out effectively the security
precautions that could be implemented with no change in law at all.

Act, but not in haste, or America will repent at length.