As the divers bring the pieces of Flight 800 up from the ocean floor, I keep hoping that the cause is going to be mechanical, not the machinations of a terrorist. Ever since the bombings in New York and Oklahoma City, I have feared for the Constitution because the understandable, if ill-informed, demands for greater protection and swifter punishment for the perpetrators jeopardizes what little protective power the Constitution has left. With each explosion we get calls from the director of the F.B.I. for more police powers to identify and nail potential and actual terrorists, and with each grant of greater police authority we all are at greater risk of falling victim to the very "protections" we demand.
Look at what happened after the April 19, 1995, destruction of the federal building in Oklahoma City. One year later, Congress passed an anti-terrorism bill that guts habeas corpus protection for prisoners on death row. Under the new regulations, all defendants in death cases have one round of appeals in the federal courts. If a death row inmate wants to appeal further -- he or she may have new evidence of innocence, for example -- the defendant cannot appeal without the permission of a federal appeals court, which will act as a kind of gatekeeper. If the court says "No," the law says the defendant may not appeal directly to the Supreme Court.
Now, it is unclear to me, and most likely unclear to you as well, how weakening habeas corpus for death row inmates reduces the ability of terrorists to do their deeds on American soil. And that's the point: under the guise of dealing with a national emergency, any kind of devilishness can slip in, and in the frenzied atmosphere that accompanies these debates, the normal gatekeepers of common sense and democratic sensibility (not strong even at the best of times) cease to function. This law does nothing to stop terrorism and everything to harm protections we've all enjoyed since the time of the Magna Carta. (It is currently under review by the Supreme Court.)
The House recently passed another anti-terrorism bill in reflexive response the TWA disaster and the bombing in Atlanta. Fortunately, most of its provisions are fairly benign: stricter policies on airport security, using racketeering laws against terrorists, a commission to study anti-terrorism policy (a usual dodge). So far, so good for the Constitution. What is disturbing is the reactions by those disappointed with the bill. Rep. Charles Schumer of New York lambasted Republicans for their opposition to multi-point wiretaps by accusing them of raising "this smokescreen called privacy." President Clinton, whose record on civil liberties is terrible, was disappointed that the bill didn't contain items offered but rejected in last April's bill, such as forbidding anyone to use computer networks like the Internet to publish instructions on making bombs (attacking free speech) and authorizing the attorney general to use the military in cases involving chemical or biological weapons (militarizing civilian police functions).
To me, the dangers to our Constitutional rights in this kind of behavior are quite obvious, but they may not be obvious to everyone. To be sure, any nation has the obligation to protect itself against aggression, whether overt or covert. But in the United States this effort has to be made within the framework of our Constitu¬tion and our democratic traditions, which means that safety has to be balanced against the benefits of a free and open society. Anything which destroys that openness in order to protect it suffers from the same dangerous illogic of the Vietnam war, where villages had to be destroyed in order for their inhabitants to be saved.
And who, really, should we fear? If we look at what the law enforcement agencies who want greater powers have done with the powers they already possess, then we citizens might want to reconsider their requests. Not just Ruby Ridge and Waco but also the lesser known depredations visited on American citizens by the FBI, the ATF, the Treasury and Justice departments, state and local police authorities, and others. Giving these entities any more opportunities to spy on, harass, disqualify, and destroy American citizens is one more assault the Constitution does not need.
Indeed, let's protect ourselves, if that's possible. But let's avoid the siege mentality that can go along with such efforts, lest we wall ourselves in while trying to wall everyone else out.
(August 1996)