- The Washington Times - Thursday, October 25, 2001

Within a day of the terrorist attacks, the first declarations that civil liberties had been violated sounded forth. Within a week the chorus became louder, even shrill. The occasion for this outcry was the need for government officials to identify quickly any and all who might have had a part in the attacks. It was clear soon that all the terrorists were, or very likely were, members of a single ethnic, linguistic or religious group: Mideastern and Muslim for sure, Arabs likely.

Instinctively, naturally, and with common sense, officials focused their attention on the communities and places where Arabs and Muslims live and work, knocking on doors here and stopping pedestrians there. Unfortunately, some angry rednecks took this occasion to lash out at anyone who appeared to fit the profile. President Bush has rightly condemned such behavior. These attacks on innocent, "Arab-looking" people are really as evil as the ghastly killings at the World Trade Towers in New York.

Of interest is the question whether police officials' vigorous investigations of people with an Arab/Muslim profile violated anyone's civil rights. Some activists are absolutely certain that they did. This is a very important issue, but it is one that has a history. In the wake of the civil rights movement of the 1960s and 1970s, the Supreme Court definitely limited the power of officials to stop and question people solely on the basis of color, clothing, or other seemingly unusual features. On the other hand, the Supreme Court has allowed a wider latitude to officials when the subject of their investigation is drugs.

Looking further back into our history, we gain even more perspective. Surely after the assassination of Abraham Lincoln, officers of the War Department stopped and questioned people whose profile included distinct telltale features, such as a deep Southern accent, because it was known that the plot had Southern roots and perpetrators. The accent was a clue, giving a direction in which to search for the plotters. During World War I and World War II also, officials looking for spies and traitors were at times guided by German accents.

As for World War II, Franklin Roosevelt thought that we might lose the war as late as 1942, or, at least, that we might not win it. In that context, it must be asked, was it not rational for Roosevelt, given the circumstances, to endorse broad interrogative (search and seizure) powers, even though this might limit the rights of some? Roosevelt's actions were not unlike Lincoln's suspension of certain rights during the Civil War. His goal, like Roosevelt's, was the preservation of the Union. That happens in war. The results can be painful and unfair. But, war is Hell in many ways.

Thus, the American past tells us very clearly that if survival of the nation is in question, some rights may be curtailed. This is a sober fact. Indeed, this is a sober prospect in the future if the nation's survival be threatened again. The question now is whether the recent terrorist attacks constitute a threat to the nation's survival. The president thinks so. Many citizens agree with him for the moment.

Civilian attitudes and public policy about civil liberties in the months ahead might include the following: Citizens would do well to also remember that liberty is not free, nor retained without sacrifice. It may be, for example, that the president will ask to draft the nation's sons to serve. That will require sacrifice. As for public policy, government officials must continue their investigations of terrorist suspects, under close court supervision, with due regard for civil rights, treating every and all persons with respect. Congress may well have to grant somewhat broader police powers for this purpose. The attorney general has already asked Congress for them. Yet, care must be taken to assure that only incriminating evidence be part of the record.

What about the sticky problem, noted above, of tracing suspects by obvious characteristics? Some complainants have argued that this is a violation of their civil rights. Is it? Our history tells us that under war powers it is not, despite some recent court cases.

There is another factor at work here, though most Americans are ignorant of it. Foreign nationals, or resident aliens, are guests in this country. They do not have a right to be here, and while here they are limited in what they may do. Once their guest status ends, that is, their visas expire, they are obligated to leave the country. Moreover, if they violate our laws, they may be immediately deported. Interestingly, it appears that all of the terrorists involved in the recent attacks were resident aliens and were in violation of expired visas. Our officials have been lax in keeping track of resident aliens, though there is now hope that they will be more vigilant.

Will the public support some broadened investigations, ones that may limit certain civil rights for a time? The answer is not yet clear.

It may take a second more dramatic terrorist attack before the vast majority of the public accepts the use of such powers. Some knowledgeable people think that there is a chance that the Osama bin Laden group will attempt to pollute the water supply of a major city with deadly biologicals, killing 50,000-100,000 people. That would likely get the public's attention.

The terrorist attacks of Sept. 11 probably have changed America for a long time to come. After the heroic rescuers have been gently led away to rest and recuperate, after the rubble and remains have been respectfully placed in dedicated burial grounds, marked for future generations, after a monument has been erected on the site of the destroyed towers, further reflections on the status of American civil rights must continue. With a better knowledge of our history, with a better understanding of war-time powers of the government, and especially with a better understanding of the Bill of Rights, it must be recognized that some abridgement of traditional search and seizure rules in time of war is not unreasonable. After all, the Fourth Amendment does not secure "persons, houses, papers, and effects" against all searches and seizures; it only secures them against unreasonable ones. Hopefully, there will be some thoughtful reflection, dialogue, and wise conclusions about what searches and seizures are reasonable in the months ahead.

L. John Van Til is a professor of humanities and business law at Grove City College, Grove City, Pa.

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