Drawing a Line for Liberties

Under pressure from the war against terrorism, the line between civil liberties and security is moving steadily toward greater police powers for the government. This isn't surprising, given heightened worries about a hidden and potentially catastrophic threat. But the alarms set off by these developments in Congress and elsewhere (see story page 2) should not be ignored.

Take, for instance, President Bush's decision to authorize the use of military tribunals to try non-citizens suspected of terrorism or of harboring terrorists. If, for instance, Al Qaeda or Taliban leaders were captured in Afghanistan, judges appointed by the defense secretary could quickly get to work, free of normal restraints such as the exclusion of hearsay evidence and evidence gathered without a warrant. There'd be no jury, and no appeals to a higher court.

This option has been used before. German saboteurs were tried by such courts during World War II. Do today's circumstances demand the same kind of efficient, stripped-down justice?

Terrorists, such as those who bombed the World Trade Center in 1993, have been tried and convicted in regular US courts. Military tribunals, no matter how well conducted, run the risk of appearing to be "hanging courts." The US should carefully consider whether their use would inflame anti-US resentment abroad or set the wrong example.

Along with the military tribunal order came news that the Justice Department plans to question some 5,000 men from Middle Eastern countries who have entered the country legally over the past two years. The hope is that this sweeping interrogation might throw added light on Al Qaeda activities in the US. It could also heighten concerns about ethnic profiling by the police and FBI.

The department reportedly has issued guidelines on handling the questioning respectfully. If those guidelines aren't meticulously followed, this project could close off more information than it provides.

Then there's Attorney General John Ashcroft's emergency order to eavesdrop, in certain circumstances, on conversations between lawyers and their detained clients.

Mr. Ashcroft has emphasized that this new power would be used only in cases where he has a "reasonable suspicion" that an inmate or detainee is using his attorney to pass plans for future acts of terror to outside comrades. Anyone eavesdropped upon, moreover, would be told beforehand.

But there's nothing to keep the attorney general from extending his suspicions to people detained for questioning, who aren't charged with anything. Those people need legal counsel, and they're entitled to it by the Sixth Amendment to the US Constitution. But counsel without privacy, with the government listening in, is counsel in name only.

Do security gains from these extraordinary steps outweigh possible long-term damage to the cherished ideal of fair and equal justice?

That question has to be asked: The terrorism threat appears open-ended, but must counterterror infringements on civil liberties also be open-ended?

The need of the moment, along with vigorous tactics to combat terrorism, is for Americans to go down this path with eyes wide open - recognizing that rights put on hold in some cases must never be lost.