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Op-Ed: Freedoms Lost Are Not Easily Regained

by Christopher Dunn and Donna Lieberman

This op-ed piece was printed in the October 19, 2001 issue of Newsday.

The horrific attack on the World Trade Center has spurned many to act urgently. Whether they are legislators in Washington or Albany, law-enforcement officials in New York City or elsewhere in New York State, or private citizens on airplanes or the streets of our towns and cities, Americans everywhere have sprung into action in an effort to assure their safety.

This urge to act is understandable, and as a result we have witnessed heroism, sacrifice, and dedication by public servants, government officials, and ordinary people. Nonetheless, we must not let our pain and outrage overcome our common sense. This is particularly important when it comes to steps that threaten the civil liberties that lie at the core of our society and to actions based on the racial, ethnic, and religious prejudices that we so long have struggled to eliminate.

Since September 11th, over six hundred people have been arrested and jailed — many in solitary confinement — by the FBI without meaningful explanation. Published reports now indicate that perhaps only a handful may have had anything to do with the terrorist attacks, though hundreds remain in custody.

In Albany legislators passed far-reaching terrorist legislation on September 17th without debate and in the space of one morning, creating new “terrorism” crimes, substantially increasing penalties for certain acts, and even adding a new offense for which people can be executed. In Washington last week the House of Representatives passed a sweeping federal terrorism bill that most members had not seen or read.

In New York City, police officers have stopped and searched thousands of vehicles and untold numbers of persons at locations around the city. It has been reported that law-enforcement personnel at the World Trade Center site have singled out brown-skinned rescue workers for extraordinary scrutiny.

Finally, some private citizens have targeted Arab-Americans, Asian-Americans, and others for actions that often are taken in the name of security but in fact are little more than overt discrimination. Whether it is passengers panicking on airplanes about “suspicious-looking” passengers, companies firing employees for off-hand remarks or associations, or individuals engaging in vigilantism, ethnic-based retaliation has been far too frequent.

With the commencement of the military campaign on October 7th and last week’s anthrax incidents, tension remains high. Whatever the weeks and months ahead may bring in terms of further incidents here in New York, we almost certainly will continue to see a series of measures taken in the interest of promoting security. And while it is difficult now to assess the propriety of the extraordinary actions taken to date, we can say with confidence that it is essential that we not overreact in a manner that not only is counterproductive but that also needlessly erodes our civil liberties.

Starting with the legislature, the stampede to pass new laws is deeply troubling and cannot be repeated. Legislation statute creates long-term changes that are not easily undone, particularly in the criminal-justice arena (as is apparent from the long-running and still unsuccessful effort to temper the Draconian Rockefeller drug laws). While people of goodwill may disagree about the merits of specific proposals as they arise, it is a grave mistake to abandon careful deliberation when considering measures aimed at terrorism. To be deliberate is not to be dilatory.

With law-enforcement, we cannot allow our Constitution and its principles to be obliterated by this attack. People cannot be detained without legal justification; likewise individuals and vehicles cannot be searched without justification and certainly not simply on the basis of race, ethnicity, or national origin. In this respect, without careful supervision and clear guidelines, large-scale searches present a particular danger of discretion that opens the door to discrimination. And before extending police authority far beyond traditional law-enforcement techniques, the government must provide clear and persuasive explanations. We remain a nation of laws.

Finally, we as private citizens must not succumb to panic and irrationality. That the September 11th terrorists had dark skins and are associated with certain countries or religions provides no basis for harassment of or discrimination against members of the large Arab-American, Asian-American, and Islamic communities here in New York. People from around the globe long have fled to America and New York to escape political tyranny, religious persecution, and ethic and racial intolerance. To be an immigrant is not to be a terrorist, a point should be particularly clear here in New York, where we are all immigrants.

In these extraordinary times we must not lose sight of the values that define our society. Genuine threats of course can justify unusual measures, but we should not lose sight of the threat that ill-advised and hasty measures can pose to our most precious freedoms. As we move forward in the aftermath of the World Trade Center attacks, we must keep in mind that, once lost, freedoms often are not easily recovered.

Dunn is a Senior Staff Attorney at the New York Civil Liberties Union; Lieberman is the NYCLU’s Interim Executive Director.

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