Freedom to lose
|Freedom's Just Another Word for What We Stand To Lose|
The Risks to Civil Liberties in the Aftermath of September 11
by SETH ZUCKERMAN [posted.12.19.01]
As law enforcement begins using the broadened authority it was granted
the September 11 attacks, the effect these new powers will have on the
environmental movement and American political life still hangs in the
Over the last three months, Congress has passed legislation and President
Bush has signed executive orders which permit secret searches,
on conversations between suspects and their attorneys, and trial of
non-citizens by closed military tribunals, just to name a few of the most
Civil libertarians warn that these new prerogatives could be turned against
people practicing legitimate forms of dissent. Some activists worry that
consequences meted out to protestors will be out of proportion to the
severity of their crimes. And the specter looms that those distantly
associated with illegal protests will be caught up in the dragnet of the
and find their privacy violated by over-eager police.
Passed swiftly by Congress in October, the so-called "USA Patriot Act"
defines a broad new crime called "domestic terrorism." According to the
American Civil Liberties Union analysis, even nonviolent groups such as
Greenpeace and the 1999 protestors at the Seattle World Trade Organization
talks could have triggered the law's draconian provisions.
Because of the law's further provisions against harboring terrorists, says
the ACLU, "Those who provide lodging or other assistance to these 'domestic
terrorists' could have their homes wiretapped and could be prosecuted."
Since the law is vague on the type of assistance to "terrorists" that would
make the act apply, even groups that work entirely within the law but
collaborate with groups that sometimes do not could find the government
monitoring their moves and searching their offices, bedrooms, and computer
"There's a history of the government abusing its powers to go after groups
that hold views contrary to its policies," says Doug Honig, public
director for the ACLU of Washington. "Even if charges don't hold up,
movements end up spending a lot of time in legal defense instead of
organizing for their issue."
Part of the danger to dissent comes from the broad definition of domestic
terrorism in the act, including activities dangerous to human life which
intended to change government policy. Nonviolent protestors could run afoul
of the law by endangering their own lives, even without risking the lives
Of course, the perception of danger also varies. Even though the vast
majority of anti-globalization protestors on the streets of Seattle two
years ago did nothing more threatening than link arms to prevent the free
passage of delegates to the World Trade Organization, some trade
representatives may well have felt threatened. Just as likely, FBI agents
prosecutors might have perceived a threat, and thrown the anti-terrorist
book at the demonstrators.
None of these concerns contradicts the axiom that civil disobedience is by
definition against the law. Principled law-breaking is deeply rooted in
American culture, going back to Thoreau's refusal to support the
Mexican-American War with his tax dollars, and, before him, to the Boston
Tea Party and other acts of resistance to British rule. Those nonviolent
acts should carry penalties in proportion to the crime, just as we don't
behead people for speeding.
Another foundation of American democracy is a willingness to allow opinions
at variance with government policy to contend fairly for public support in
free marketplace of ideas.
With the passage of the "USA Patriot Act," the feds have expanded their
power to choke off those discordant viewpoints. Now, to be kept off Yankee
soil, you have only to belong to "a political, social or other similar
whose public endorsement of acts of terrorist activity" has run afoul of
Certainly, there are grounds to exclude bona fide terrorists from the
States for fear that they might kill again. But America was built on the
notion that we have nothing to fear from others' opinions and associations.
As painful and provocative as it might be to hear from people whose
sympathies lie with the terrorists, it's important to hear the full
of foreign views about the United States. Immediately after September 11,
many Americans wondered aloud, "why do they hate us so much?" Banning
speakers who could explain that firsthand would amount to willful and
Other efforts to stifle the free interchange of ideas have unfolded through
official and quasi-official pronouncements. In testimony this month before
the Senate Judiciary Committee, Attorney-General John Ashcroft warned that
anyone who opposes the grant of sweeping powers to law enforcement gives
comfort to terrorists. The American Council of Trustees and Alumni, headed
by the wife of Vice-President Dick Cheney, criticized 115 professors and
college students for expressing anti-American and equivocal sentiments
the September attacks. And the U.S. bombing of the Kabul bureau of the
independent al-Jazeera TV station Nov. 13 came six weeks after U.S. Defense
Secretary Donald Rumsfeld asked the government of Qatar (where al-Jazeera
headquartered) to rein in its editorial freedom. While none of these
statements has the force of law, all seek to narrow the range of acceptable
Meanwhile, front-line activists who coordinate civil disobedience and other
nonviolent but law-breaking demonstrations vow that the new government
powers will not deter them.
"This isn't going to affect whether we decide to head into ground zero of a
nuclear test, or board a shipment of illegal timber," said Mike Roselle,
ancient forest campaigner for Greenpeace and a co-founder of Earth First!.
"If everyone wants life to get back to normal -- well, that means
should go back to seizing ships."
Roselle acknowledges that Greenpeace has adjusted its tactics slightly in
its use of rubber boats around U.S. Navy ships. Mindful that a similar
vessel was used in the attack on the U.S.S. Cole, Greenpeace developed
of engagement with the Coast Guard and Navy, and communicates with each
before approaching. "We don't want to sneak up on a battleship in today's
conditions," Roselle says.
Global Exchange, a San Francisco-based group that has been prominent in
organizing against the World Trade Organization and International Monetary
Fund, shares that measured perspective. "We're concerned, but we're not
paralyzed with concern," says spokesman Jason Mark. "The law could allow
government to levy heavy penalties for minor offenses. But it's hard for me
to believe someone will be described as a terrorist for participating in a
sit-in." In any case, he vows, "we're going to continue business as usual.
If we think we need to take direct action, or commit civil disobedience,
we'll go ahead so these acts don't become verboten. It's our responsibility
to keep pushing the envelope."
For these political organizers, the reality facing dissidents is not the
black and white letter of the law, but the shades of gray in how it is
enforced. "Words on paper have never guaranteed rights to anyone," says
David Solnit, a puppeteer with the anti-globalization group Art and
Revolution. "It's all about how much you assert them and how much you
accept. Civil rights are like muscles. Nobody can legislate your muscles."
The actual balance of power between official policy and dissent will depend
on the political savvy of the protestors and the discretion of prosecutors
and investigators. In his Senate testimony, Ashcroft offered blustery
assurances that his administration would never abuse the powers it has
claimed. But America was founded as "a nation of laws, not men," in the
centuries-old words of John Adams. That dictum is never more important than
in the midst of crisis, when a sense of urgency is most apt to breed
governmental excess. When basic freedoms depend on the forbearance of
officialdom, one of the preconditions for tyranny has been met.