America's New War?
Or War On Americans?


For a while, war may trump civil liberties; caution urged

By Emilie Lounsberry
Knight Ridder News Service

PHILADELPHIA — Broader wiretap laws. Stricter statutes for money laundering. People detained for 48 hours or more without being charged with a crime. A long list, sent to police, of people the FBI wants to question.

A week after terrorists struck the World Trade Center and the Pentagon and hijacked a plane that wound up crashing in western Pennsylvania, the pendulum of law enforcement is taking a wartime swing — in the direction of expanded police powers.

Just 10 days ago, the notion of police "profiling" groups by race or ethnicity was considered wrong. But now, to many enraged and frustrated Americans, it's not such a dirty word as a nationwide manhunt for suspects has focused in part on Arab American communities.

Even some veteran civil rights and constitutional scholars say last week's horrifying events may necessitate tougher laws that impinge on privacy and perhaps even reduce other personal freedoms.

But they urged caution.

"I'm not saying ultimately that that can't be the right approach," said David Rudovsky, a civil rights lawyer and law professor at the University of Pennsylvania. "What I'm saying is, before we rush, the burden on them is to make their case and not because everybody says we have to do something."

Susan Low Bloch, a constitutional law scholar at Georgetown University and former law clerk to U.S. Supreme Court Justice Thurgood Marshall, said Americans might just have to put up with the notion of reduced freedoms, at least temporarily.

"Maybe for a while — at least until we feel a little safer — I'm prepared to give up a fair amount," Bloch said.

She said Attorney General John Ashcroft's proposal to expand the federal wiretap law by permitting taps on any telephone used by a suspect "seems like we're just catching up with the reality — we use lots of phones."

Bloch, too, cautioned, "We do have to be careful."

Ashcroft has urged swift congressional approval of a tougher wiretap law and proposals allowing use of money-laundering statutes to prosecute people who provide resources to terrorists.

The broad new surveillance law proposed by Ashcroft would allow the FBI to request wiretapping orders for a suspect, rather than a telephone, and allow agents to tap any phone a suspect uses — including mobile, cellular and disposable phones — without having to go back to court for a judge's approval to keep tapping when a suspect moves from one jurisdiction to another.

At Ashcroft's request, the Immigration and Naturalization Service on Tuesday changed its rules to help the widening hunt for the terrorists and their helpers by allowing suspected illegal immigrants to be detained for 48 hours or more. The old limit was 24.

The two-day rule could be expanded to an "additional reasonable time" under an emergency, or in extraordinary circumstances. Ashcroft did not specify what would constitute such circumstances but said the new rule will apply to 75 people detained thus far by the INS on suspected immigration violations as part of the larger investigation.

Investigators say this change gives them more time to verify identities, check international databases and other record systems, and exchange information with U.S. and international law enforcement agencies.

The nation has what Rudovsky described as a dubious record when it comes to wartime liberties — from Abraham Lincoln's suspension of habeas corpus protections during the Civil War to the internment of Japanese Americans during World War II. Even the Cold War was marked by the 1950s witch-hunts for suspected communists.

"We don't do very well in times of war in terms of protecting civil liberties," Rudovsky said. At the same time, he said officials may have a persuasive case for adopting tougher laws to track down terrorists, and he predicted the pendulum was "going to swing somewhat. The question is, how much, and is it justified?"

Vikram Amar, a constitutional scholar at the University of California's Hastings College of the Law, said officials should consider a sunset provision allowing some of the new laws to expire after six months. "Let's make sure the measures don't outlast the emergency," he said.

The FBI has sent police agencies a "Be On the Lookout Alert" that lists 155 people "who may have information related to the ongoing investigation. ... If recipients know the location of any of these individuals contact your nearest FBI office."

It's not clear what impact the list could have on dozens of Americans with names similar or identical to those on the FBI list.

Jeffrey Shaman, a constitutional scholar at DePaul University in Chicago, said that because "civil liberties have suffered greatly" in times of war or crisis, Americans should be concerned. "If we start cutting back on our constitutional rights at this point, that means terrorism has defeated us."

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