Wait until the catastrophic body count starts to settle in, and the concrete, flames and sheer eye-popping spectacle are replaced by blood, guts and body bags by the thousands. Wait until the anger sets in.
America‘s pride is its freedom. But in time of crisis, repression has often trumped freedom. And it well could again. Look at the record. The birth of our nation brought forth the Alien and Sedition Acts; the Civil War, Lincoln’s suspension of habeas corpus.
In 1920, a bomb at Wall Street‘s J.P. Morgan Company killed dozens of people and, as Eric Foner, a professor of history at Columbia University, points out, made J. Edgar Hoover’s career. The FBI, which was then a fledgling organization, became famous through its investigation of the bombing, and Hoover made a big name for himself, while creating an atmosphere that led to the Palmer Raids, America‘s first great Red Scare, the deportation of thousands of ”aliens“ and the crackdown on radical political groups like the Socialist Party and the IWW.
The bombing of Pearl Harbor in 1941 was answered by the internment of 110,000 Japanese-Americans, not one of whom was ever convicted of any war-related crime.
In the ’50s, a drunken Joe McCarthy fueled the 20th century‘s second great Red Scare. As repression and hysteria swept the nation, thousands of people in and out of the government lost their jobs, and everybody else cowered.
In the ’60s, the FBI — which under Hoover viewed both the civil rights and antiwar movements as enemies — illegally surveilled and wiretapped Martin Luther King Jr. and thousands of other peaceful Americans, with absolute impunity.
Tuesday‘s terrorism will also threaten Americans’ civil liberties. The only question is to what degree. ”Everything is on the table,“ says Laurie Levenson, a professor of law at Loyola Marymount University. ”Take the issue of racial profiling — we were coming close to the idea that racial profiling was wrong; now that‘s going out the window.“ Instead of two or three African-Americans being guilty of driving while black, it will be a couple of ”Arab-looking“ guys in an airport who are going to be zeroed in on. And legally.
In terrorist situations such as we’re now experiencing, the law gives the government extraordinary powers. Permission to wiretap people doesn‘t have to be obtained by judges. The FBI and other government agencies can use wiretaps approved by the attorney general if the situation relates to national security, which this one certainly does. That could easily lead to federal or local law enforcement tapping the phones and monitoring the e-mail of journalists, political activists, civil-liberties lawyers and other ”subversives.“
Even before the bombings, the Justice Department was lobbying Congress hard to pass legislation allowing the FBI and other government agencies to broadly screen anyone’s e-mail. It‘s clear that the bombings are a perfect opportunity for law-enforcement officials to get all they desire from Congress and George Bush so that they can monitor anyone they want whenever they want.
In 1984, under President Reagan, Congress passed the Comprehensive Crime Control Act — a ”reform“ of the nation’s criminal-justice system that institutionalized draconian mandatory sentences, property-seizure laws and RICO statutes — all of which vastly increased the federal government‘s web of repressive power.
In 1996, under President Clinton, Congress passed another momentous bill, this one having to do with ”anti-terrorism.“ It deeply cut back on habeas corpus rights, and made the federal death penalty an option in some terrorist cases.
After Tuesday, our rights to be free of arbitrary searches may also be threatened. Courts are loath to suppress evidence when security is concerned. And Rehnquist’s Supreme Court has repeatedly said that public safety is paramount. In one case it ruled that the simple act of running in the area of a crime scene was enough for police to determine reasonable suspicion.
”In the original World Trade Center case,“ says Levenson, ”we had a circumstance where one of the defendants asked for a new trial because he could prove that an FBI agent had perjured himself. And the court said, well, he may have perjured himself, but we got the right guy, there‘s enough evidence, you don’t get the new trial.“
Constitutional guarantees such as not holding people beyond 48 hours without arraignment could also fall by the wayside. Ordinarily, when people are arrested for crimes, they‘re supposed to be arraigned and brought before a judge, who determines if there’s enough probable cause to hold them, or if they can have bail. That‘s supposed to happen within 48 hours unless it’s an extraordinary situation. The ‘92 L.A. riots triggered one of those extraordinary situations, and this attack could, too.
It’s easy to imagine Bush and John Ashcroft‘s Justice Department passing more anti-terrorist laws, and this Supreme Court — which has shown contempt for civil liberties — upholding them. It certainly wouldn’t be without precedent, Foner points out: ”It was the Supreme Court, after all, that upheld the internment of Japanese-Americans.“ But it would be a disaster if the American people got the idea that any person of Arab descent was a potential terrorist.
”We need vigilance [in protecting our rights] at times like these,“ says Erwin Chemerinsky of USC‘s School of Law. ”The whole point of having a constitution is exactly for times of crisis, so that we don’t lose sight of our long-term values.“