©2003, TOM SAECKER

Are civil liberties being destroyed or defended in this age of terroristic threats? Fear Strikes Out By Barbara Snyder The world has never had a good definition of the word liberty. And the American people just now are much in want of one. —Abraham Lincoln April 18, 1864

What Price Safety?
The advent of international terrorism in the United States caused many Americans, particularly those in government, to clear their desks, wipe their slates and start over in a dark, new reality. But 140 years after President Lincoln stared down the barrel of national insecurity and rightly questioned the definition of American liberty, his question has resurfaced with new implications. Must individual rights suffer for the sake of general welfare? Could low-grade tyranny be the by-product of the battle to preserve life and liberty? Will one of the casualties in the war on terror be the Bill of Rights? In the following pages, Dickinsonians take up those questions … and pose a few more.

Jared Mellott '04 backs the Bush administration, saying the government's efforts during the war on terrorism are meant to preserve rather than undermine American civil liberties.

The Politics of Fear
Until recently, most Americans felt safe from bioterrorism—it was a problem for other nations. Now, those who haven’t purchased a gas mask or a spare supply of antibiotics may have at least considered it.

At first glance, bioterror may not seem like a civil-liberties issue. What possible bearing could an outbreak of smallpox have on the U.S. Constitution? As an historian of American and political culture with an emphasis on the history of public health, Associate Dean JoAnne Brown sees many connections, some of which have already played out in American history.

“Inherent in the biology of any disease is the classic public-health problem that pits individual rights against the health of populations,” Brown says. “It concerns the relationship between the disease itself, on the one hand, and historically based generalizations about who should be kept healthy. Who will be kept safe? Who is a threat?” She calls these generalizations “the politics of epidemics.”

Brown points to San Francisco at the turn of the 20th century as an example. The Chinese population of the city was thought to be the source of the bubonic plague and so was confined inside a 9-foot fence and denied liberty based on race.

“When you make race a proxy for actual diagnosis,” Brown says, “then healthy people are locked up with the sick. In this case, a healthy Chinese person would have been branded as dangerous. Meanwhile an infected Caucasian person outside the fence is presumed ‘innocent’ and can be spreading the disease. Such false positives and false negatives arise when there are gaps between medical diagnoses and social generalizations.”

The 14th Amendment to the Constitution states, in part, that laws must be enacted and enforced in a way that treats people equally. If there were a shortage of a vaccine during a modern-day smallpox epidemic, for example, how would the limited supply of vaccine be distributed? Lines could be drawn geographically, racially, socio-economically or politically. An every-man-for-himself attitude could pervade public-health policy, and equal treatment under the law could be a thing of the past.

“When people operate under fear, they do things they wouldn’t do otherwise,” Brown says. “These are the ways that epidemics challenge the system. We need to understand how fear operates politically.”

The decision to confine the Chinese population was born of fear. So if this country is faced with an epidemic brought on by bioterrorism, will cooler heads prevail?

“Panic throws the public-health laws that are already on the books into play, and the stakes are high,” she says. “The 1950s polio scare was the last time we dealt with casual transmission of a killing disease. The spread of AIDS, as devastating as that is, is different from a disease that spreads through casual transmission. I like to think the public won’t panic, but the commercial press is good at capitalizing [on fear]. We have what epidemiologists call a virgin population for this kind of scare.”

Knowledge is an important component in controlling fear, according to Brown. During the 9/11 terror attacks and ensuing anthrax scares around the country and on campus, Brown says her freshman-seminar students had read enough about previous epidemics that they were able to better evaluate the veracity of rumors and so more accurately assess dangers.

But in the absence of historically grounded, clear thinking, Brown worries that a real or perceived medical crisis could affect the health of American civil liberties as well as the public health.

“Damage to civil liberties may also constitute damage to health, if the healthy are falsely branded as sick or the sick are falsely presumed to be well. Public-health officials are acutely familiar with these dangers. I think medical professionals are impressively working against great challenges. But in the larger political system right now, we do not have robust championing of egalitarian values, not at the federal level. I’m fearful that there won’t be equal treatment under the law.”

We are under a Constitution,
but the Constitution is what
the judges say it is, and the
judiciary is the safeguard of
our liberty …”
—Charles Evan Hughes
Chief Justice of the Supreme Court
May 3, 1907

The Battle Over No. 5
The judicial system is central to what may be the most fiery debate over civil liberties during the war on terrorism. The Fifth Amendment provides protection against arbitrary government actions. As part of those protections, no one may be prosecuted for a federal crime without first being indicted by a grand jury, and the due-process clause bars the government from arbitrarily depriving anyone of life, liberty or property. At the same time, there is some historical precedent for the temporary infringement on those constitutional guarantees for the sake of national security. The question is, can the government’s current actions be justified?

Richard D. Willstatter ’77, a member of the American Civil Liberties Union (ACLU), has been a criminal-defense attorney for more than 22 years. From his office in White Plains, N.Y., he acknowledges that he is not currently defending anyone charged with terrorism, and because of his personal reaction to the attacks of Sept. 11, 2001, he does not believe he could zealously defend a person charged with conspiring to commit those attacks. “Sometimes and very infrequently,” he says, “I might feel that a particular case hits too close to home.”

Nevertheless, he argues, the American system of justice demands due process and representation for every defendant, including those who are unpopular.

“The government has arrested several American citizens as unlawful combatants,” Willstatter says. (Jose Padilla, for example, is being held in a navy brig.) “They have not been charged with crimes. They are being held indefinitely, incommunicado. They are not classified as prisoners of war and therefore are not protected by the Geneva Convention.”

Willstatter says the government is using as precedent a case involving German soldiers from a U-Boat off Long Island during World War II. “They were German soldiers, not in uniform, acting as saboteurs,” he says. “This is different. These are American citizens, not soldiers. They may or may not have committed serious crimes. The government has not tried them before a military tribunal, and who knows how long they’ll be held.”

Professor of Political Science Harry Pohlman agrees that government actions regarding those being held as unlawful combatants are cause for concern. “Detaining people without charges is the de facto suspension of the writ of habeas corpus [a constitutional guarantee against arbitrary and indefinite imprisonment without the filing of specific charges]. Such precedents can lead to a gradual weakening of [constitutional] guarantees. This so-called war could go on for a decade or more. We could have a whole generation raised with this constitutional background.”

But Pohlman also sees some positive signs on the civil-liberties front. “Congress, as time has gone on, has shown some concern for civil liberties on both sides of the aisle,” he says. “I think that is a very healthy sign.”

Jared Mellott ’04, a political-science major and member of the College Republicans, supports the Bush administration’s efforts. He sees the government’s actions to date as modest and justifiable, particularly given his view that terrorist ideology threatens to destroy the American way of life.

“If the Justice Department uses a looser standard for detaining people suspected of terrorist activities than it uses for those involved in domestic criminal cases,” he says, “then Attorney General [John] Ashcroft is preserving rather than undermining our liberties. We are in a perilous era in which security must take priority over convenience. The right of our government to ensure the survival of our people and our country must take priority over the alleged rights of terrorists.”

Putting his arguments in historical context, Mellott refers to Abraham Lincoln’s suspension of the writ of habeas corpus and use of military tribunals during the Civil War as part of Lincoln’s effort to preserve the union.

“President Bush and Attorney General Ashcroft are merely acting similarly to preserve our nation in the face of a different threat,” he says. “We should not fundamentally destroy our liberties while trying to defend them, but in the present case, we have not done so.

“Americans are still free to speak their minds on politics, to express their religious beliefs, to peaceably assemble, to bear arms and to possess private property,” Mellott adds. “They just cannot be part of a terrorist plot to destroy America and expect to violate our national security by assuming for themselves all the rights that the accused enjoy in peacetime. And they cannot expect that our intelligence-gathering agents will refuse to use advanced technology to pursue those who can reasonably be suspected of terrorism. If we listen to those who want to treat potential terrorists gingerly, we might not have a free country in which we can argue about our rights much longer.”

Willstatter acknowledges the difficulties of dealing with the present circumstances. “This is a very emotional time. We all feel like they are shooting at us. Even those of us who are committed to civil liberty are not at all interested in seeing the guilty go unpunished. The defendants who were charged in the first World Trade Center cases were provided with good lawyers and fair trials, after which they got what they deserved. It was justice American style. There is a lot to be said for that process. It makes you proud to be an American.

As a faculty member with nonresident-alien status, Jennifer Blyth has willingly endured the travel restrictions placed on her life and career.

Tracking Foreign Nationals
On-campus changes resulting from the fight against terrorism may be most apparent to foreign-national students and faculty. Government-imposed travel restrictions and tracking systems have affected Dickinsonians to a certain degree and have had a substantial impact on the general landscape of American universities.

The Student and Exchange Visitor Information System (SEVIS) is an online database meant to keep track of student visitors to the United States. While the ACLU has long opposed laws related to immigrant registration, saying they treat immigrant populations as a separate and quasi-criminal element of society, Associate Dean and Director of the Office of Global Education Brian Whalen says the SEVIS system has not been a part of that controversy.

“This is not new legislation,” says Whalen. “It’s something the government was supposed to be doing. We in higher education realized the need for this system, and Dickinson is one of the first couple hundred [institutions] to get on board.”

Until now, Whalen says, the old student-tracking system was inefficient. “The feds had no handle on who was in status, who was out of status, and who was where. If a student left Dickinson, we would report it on a piece of paper. But that led to mounds of paper.”

While unprocessed documents accumulated in the Department of State, the proposed electronic system was stalled for years while officials wrangled about who would pay for it.

“After 9/11, the money was quickly found,” Whalen says. “Now, with the information integrated on a database, the government can search it.”

The money was found so quickly, Whalen says, because some of those involved in the 9/11 terrorist attacks held student visas. “But fewer than 2 percent of foreign visitors in this country are students,” he says. “There has been a misperception of the threat level from student visitors.”

Travel restrictions have changed the nature of working in the U.S. for some faculty members.

“As difficult as the process of working as a nonresident alien is, it is still my choice to endure those difficulties, and I am happy to do so given the alternatives,” says Assistant Professor of Music Jennifer Blyth, an Australian citizen.

“It is easy to complain and be perceived as complaining, and indeed there are many times I want to complain,” she says. “But I choose to live and teach here, pay full taxes here, pay full education costs (loans are not available to international students), pay exorbitant legal fees to understand and submit the paperwork necessary to apply for green-card status and have my career restricted, because I believe that what I contribute in return is valuable to the country, which is why I enjoy my job here. I wouldn’t choose anything else. Whether I am ultimately granted green-card status is beyond my choice, however. That is up to the government.”

Nationally, the new tracking system has meant that fewer students and faculty are able to come to this country. “Some schools are having trouble bringing students from the Middle East,” Whalen says. “And I think some foreign students are having anxiety about going home and being able to get back.”

But the larger problem, Whalen says, is one of America as a destination of study. “With the perceived security risk, students go to other English-speaking countries to study. Australia and Canada, for example, are heavily recruiting and getting a lot of students. That will hurt admissions in this country. But I don’t believe Dickinson will be adversely affected.”

According to Whalen, Dickinson’s intimate level of community relieves the college from many of the pressures that could be created by the implementation of the tracking system. “I think the issues are harder on bigger campuses,” he says.

In addition, Whalen says, there are some ethical issues related to advising foreign students and being their advocates. “Foreign students are a good influence. They have a wonderful impact on the landscape of the college,” he says. “Now it seems like [college administrators] have another role. We’re more aware of protecting our borders. But how best do we advise the students while also being on the lookout? Nationally, this is an issue, but at Dickinson, we tend to know our students so well. At a huge school with larger volume, it would be a different problem. Here, we know these students. We have a good sense of their goals and motivations.”

Glass Half Full—or Half Empty?
Lincoln’s question about the definition of liberty may never be fully resolved. Likewise, Douglas Stuart, professor of political science and director of The Clarke Center for the Interdisciplinary Study of Contemporary Issues, has mixed opinions about the state of civil rights during the war on terrorism.

“Right after 9/11, there was an overreaction for understandable reasons. But Congress didn’t approve everything that was proposed. The infringements on civil liberty have been more than I am comfortable with, but not worse than other democracies.”

To explain the dilemmas faced by the United States today, Stuart points to the complexity of the American system of government and to the vulnerability created by an open society. “Intelligence failures are inevitable,” he says. “But Americans are unaccustomed to living with uncertainty. We are a society inclined to say, ‘fix it.’ Or if it can’t be fixed, we want to know who we can blame.” •