- The Washington Times - Wednesday, October 2, 2002

In the rushed congressional battle over the Department of Homeland Security, partisan combat over civil service rules has eclipsed an issue of great importance to many more Americans.

While consolidating and expanding the government's ability to reduce security threats, will we simultaneously enhance safeguards against risks to civil rights and liberties? Risks which both distant and recent history show to be quite substantial?

There is a steady flow of controversies: What added safeguards are needed for visas and at ports of entry, and directed at whom? When will an alien be designated a "person of interest," and when might that or some other determination trigger restricted access to counsel, a secret hearing, or indefinite detention? When and how might an alien or even a U.S. citizen be designated an "enemy combatant," and then afforded a markedly lower standard of due process?

Does the failure of a "legal" alien to file a change-of-address form always justify detention and deportation alien? What quantum of evidence justifies surveillance of places of worship, or of immigrant community groups?

No one argues that security concerns are entirely fictional, and only a few deny that some policies warrant civil liberties anxieties, if not outrage. Libertarians of the left and right are concerned about the accretion of governmental power, which they deem threatening, ipso facto.

For the rest of us, the controversial assessment of competing risks to liberty and security is murkier. In particular, along with our diversity come battle lines largely reflecting the structure of dissent, protest, and power in America.

Civil rights leaders and immigrant groups seem unanimous in their belief that the communities they represent are most likely to bear the collateral damage in the war on terrorism damage in the form of discounted rights, and lip-service liberties.

Admittedly, the plausibility of such fears is judged through the prism of experiences, and our experiences are color-coded. (This is, after all, America.) Nevertheless, even conservatives care about the liberties, and about the broad legitimacy of the homeland security effort. Aren't these the conditions for consensus?

So, for all of us, the pending legislation should do four important things and there is every possibility for bipartisan, left-right agreement on each of them, given time and oxygen for conversation.

First, the legislation can ensure that the substantive concerns around civil rights, civil liberties and privacy are represented in policy counsels. The Gramm-Miller-McConnell bill favored by the White House does not do this, while the Lieberman bill (and the House bill as well) would create a "civil rights officer" and a "privacy officer." Certainly no guarantee of any particular substantive balance, but at least a promise of informed bureaucratic deliberation.

Second, the legislation should create a Senate-confirmed deputy inspector general with the independent monitoring powers needed to determine exactly what the formal and informal policies related to civil rights and liberties actually are, because the potential for policy confusion, vagueness or secrecy is substantial and unhelpful. How can Congress and the public keep tabs on the policies if what the executive branch freely discloses is only the tip of the iceberg?

Third, the legislation can empower that deputy inspector general to investigate whether officials are actually complying with those policies, whatever they are. The accountability icing on this should be regular reports, some classified and some sanitized, for the president and Congress.

Fourth, this watchdog capacity should be governmentwide, matching the governmentwide coordination responsibilities of the new department. After all, much of the antiterrorism effort will be waged by other agencies. If those other inspectors general for some reason decline to monitor civil rights and civil liberties issues, the new office should have backup authority to do so.

As of now, a strong oversight mechanism remains missing in both Senate bills, but there is some bipartisan interest in strengthening the Lieberman bill achieving perhaps half a loaf. Perhaps, through the politically charged procedural thicket, the Gramm-Miller-McConnell alternative could be strengthened as well. The administration has not seemed hostile to some civil liberties improvements, so gains seem politically feasible if anyone pays attention.

We sometimes do things in the name of security that we regret in the morning, and communities with little power are most vulnerable to official excess. The immediate danger is that the rush to legislate may not equip an agency watchdog with the right tools: a microscope and a cattle prod, not the sunglasses and feather duster in the present bills.

Congress should reassure both the comfortable and the vulnerable among us, with a mechanism to create accountability and informed debate in years to come about the balance of security and liberty.

At stake is the long-term legitimacy of the domestic war effort, which requires a vital, continuing examination of collateral damage to our liberties.


Christopher Edley Jr. is a professor at Harvard Law School and co-director of its Civil Rights Project and a member of the U.S. Commission on Civil Rights.

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