Security and Freedom

NY TIMES ^ | 9/10/02 | NICHOLAS D. KRISTOF

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hen we look back at how our country has handled the last year, we have much to be hugely proud of — and, perhaps, one thing to be just a bit embarrassed about.

That's the way some people's civil liberties have been steamrolled since 9/11. I fear we'll look back on this with a hint of shame, much as we recall the abuse of "Reds" after the Bolshevik Revolution and of Japanese-Americans during World War II.

Still, arguments of some liberals and civil libertarians strike me as overdrawn. Since this is a time to seek lessons, let's reflect on a few common complaints:

President Bush is betraying American traditions by turning to extrajudicial detentions. On the contrary, Mr. Bush is honoring a hallowed American tradition of jacking up security in crises. Mr. Bush has been far more restrained than Franklin Roosevelt (who interned Japanese-Americans), Woodrow Wilson (who presided over the Palmer raids) and Abraham Lincoln (who suspended habeas corpus).

The public is willing to compromise in its embrace of the Bill of Rights when it feels the need to adapt to heightened risk. For example, an opinion poll recently asked Americans what they thought of the First Amendment, and 49 percent said it went too far. So it may be liberals who are out of step with the times.

The historical pattern is clear: At times of national stress, political leaders take shortcuts with the law, to general applause. A generation later, people tell their grandchildren that they were appalled by the abuse of civil liberties.

Our entire system of civil liberties is at risk. No, our basic freedoms are not that fragile, and our system itself is in no danger. The detentions of 1,200 people, mostly foreigners who had broken immigration laws, are not the first step to throwing Grandma in jail for thought crimes.

Still, indefinitely imprisoning innocent people as "material witnesses" is wrong on its own. Consider the detention of Tiffany Hughes and her Yemeni husband at the military base where Ms. Hughes, an American citizen, was serving in the Army. The husband was jailed for 52 days, mostly in solitary confinement.

Imprisoning a Yemeni because he is a Yemeni will not destroy our freedoms. But it undermines our ability to project our values abroad. The U.S. system of justice has been a model abroad, but how can we tell Uzbekistan (where Muslim extremists threaten not just terrorism but also revolution) to honor human rights and the rule of law when we cut corners ourselves?

Of course, the people being tossed in the clink are typically foreign nationals, not American citizens. But that double standard is itself faulty. As Prof. David Cole notes in the latest Stanford Law Review, key constitutional protections are guaranteed not just to citizens but to all "persons" subject to our laws.

The moral force of the Jeffersonian vision, after all, lies in its embrace of universal human rights, not simply privileges of citizenship.

The Bush administration not only is chipping away at civil liberties, but worse, it wants to do so in secret. This is the nub of it. The administration's insistence on secret detentions, on secret immigration hearings, on secret evidence — all this means that civil liberties are eroded without any opportunity for public scrutiny or meaningful debate.

A new report by Human Rights Watch records the abuse of detainees such as Uzi Bohadana, a 24-year-old Israeli Jew (apparently the authorities find all Middle Easterners equally likely to be members of Al Qaeda). Mr. Bohadana was left with a group of inmates who had been told that he was a terrorist. Guards stayed away during the subsequent beating, which left Mr. Bohadana with a broken jaw and cuts on his right eye and lip that required stitches.

That's what happens when people are arrested secretly, when human rights groups cannot interview detainees, when proceedings are secret. We become China.

When I lived in Beijing years ago, I once bitterly remonstrated to a Communist Party official about the detention of a dissident friend, Ren Wanding, the bravest man I've ever known. "If America were threatened by chaos and instability," the Chinese official replied contemptuously, "then it would do the same."

I scoffed. But today, while I exult in the heroism of the last year, while I admire President Bush's response in the first few months after 9/11, one thing bothers me just a bit: a sense that perhaps we've reacted in such a way that that Chinese official is feeling vindicated.