Terrorizing Ourselves

By Richard Lacayo

Two days after the attacks at the World Trade Center and the Pentagon, Virginia Sloan realized that if the terrorists wanted to attack American freedoms, they had got somewhere. "I was valet parking for dinner, and I had my hood and trunk and the inside of my car searched," says Sloan, executive director of the Constitution Project, a legal-issues organization in Washington. "Can we as Americans tolerate that? I think not."

Maybe we can. Americans are generally unfriendly to security measures that intrude too much on their privacy. But that was before last week, before they saw the crematoriums in New York City and Washington and started to wonder if the next dive-bombing airliner could be aimed at them. If ever there was a time when they might be receptive to trimming their accustomed freedoms, that time is now.

And whether they are receptive or not, the changes have already begun. Long waits to cross the Canadian and Mexican borders were the rule last week, as vehicles and travelers were finecombed by border police. Civil libertarians are bracing for an upsurge of "racial profiling" at airports targeting Arab Americans, or for an FBI investigation of the attacks that sucks in many innocent members of that group, or simply for a wave of hate crimes against them.

Emergencies have always been a time when the niceties of law have been most vulnerable to the demands of national security or national hysteria. As Senate minority leader Trent Lott said last week, "When you're in this type of conflict, when you're at war, civil liberties are treated differently." World War II produced the internment camps for Japanese Americans, a development upheld in 1944 by the Supreme Court but later repudiated. After the bombing at the federal building in Oklahoma City, the Immigration and Naturalization Service was authorized to establish a new court to consider the deportation of suspected alien terrorists, in which cases would be heard without the usual obligation to inform the accused of the evidence against them.

Now the Bush Administration is considering the establishment of special military tribunals. Suspected terrorists could be tried without the ordinary legal constraints of American justice. During World War II, German saboteurs were tried secretly that way in Washington, and those convicted were hanged 30 days later.

Just one day after last week's attacks, the Senate also approved a provision expanding the circumstances under which law-enforcement agencies can force Internet service providers to hand over information about subscriber e-mails. If the Federal Government were to monitor more e-mails, a key question would be whether it would hold on to them for some time or dispose of them almost at once, as it now does with the information obtained from instant background checks mandated by federal law for gun purchases. Americans may be willing to let their e-mails pass one time through a sort of national filter that would screen for hints of terrorist activity. They will be far more reluctant to allow the government to collect a national e-mail database.

Civil libertarians expect renewed calls for a national identification card. The cards could have photographs and hard-to-falsify identifying information like handprint or retina data that could be read by scanners at, say, airline counters. If cards were required for many common transactions--renting a car, buying an airline ticket--they would be useful for keeping track of criminals and terrorists. Or you. Eva Jefferson Paterson, executive director of the Lawyers' Committee on Civil Rights Under Law in San Francisco, predicts that innocent citizens would be challenged constantly to produce their cards. "You could be stopped by the police to prove you can walk down the street," she says. "Poor people and people of color would be stopped the most."

There could also be stepped-up public surveillance. At last year's Super Bowl in Tampa, Fla., law-enforcement officials secretly scanned spectators' faces with surveillance cameras and instantly matched their faceprints against photographs of suspected terrorists and known criminals in computerized databases. Facial-recognition technology might help, says Bruce Hoffman, vice president for external affairs at the Rand Corp. and a former adviser to the National Commission on Terrorism, but mostly after the fact, during an investigation. And that means storing all the face data collected, something civil libertarians fear will allow the government to track any individual. If systems were set up all over a city, you could be "checkpointed" by camera when you board a train, stop at a cash machine and enter a store or the place where you work. "We are vulnerable," says Hoffman, "and there's a certain level of risk that we have to accept and live with. To me, the cure can be far worse than the disease."

Says Morton Halperin, senior fellow at the Council on Foreign Relations: "If you take both security and civil liberties seriously, you can find solutions that respect individual rights and privacy and still give the intelligence and law-enforcement agencies the scope that they need. We had worked that out in terms of airports. Nobody thinks you have the civil liberty to take knives on airplanes. I don't know who made the decision to let people bring knives on anyway, but it was certainly not civil libertarians."

--Reported by Andrew Goldstein/Washington, Chris Taylor/San Francisco and Elizabeth L. Bland/New York

With reporting by Andrew Goldstein/Washington, Chris Taylor/San Francisco and Elizabeth L. Bland/New York