Invading the Bill of Rights. (Cover Story).

"We can very well accomplish ourselves what the terrorists couldn't do on their own: destroy the United States as we know it. Even if we don't tear up the Constitution explicitly, we can do it one piece at a time."

--Lauren Weinstein, moderator of an online privacy forum

"I'm writing an article for the Los Angeles Times," she said, "about how Americans are feeling about the flag during this time of national crisis. How are you feeling about it? Are you flying the flag?"

"How much time do you have?" I asked.

"As long as it takes to hear your answer," she said.

And so ... we talked. I did my best to explain my views to this reporter who genuinely seemed to want to know and understand why I couldn't fly the flag at this time.

I explained how heartbroken I am by the terrible events of September 11 and the loss of so many lives. I told her how devoted I am to the United States of America and to my country's principles of freedom and democracy. Then I explained in detail how horrified I am by the religious and nationalistic war frenzy inflamed by the government and the news media--and the identification of the flag with a message of vengeance to be achieved by the annihilation of more thousands of lives. I told her that I cannot in good conscience display the flag because of the implied message of complicity with blood lust, jingoistic patriotism, and a "God is on our side" mentality. And I told her about the white ribbons that my husband and I had, that very afternoon, tied on our front porch to symbolize our opposition to the announced war.

Somewhat laughingly, she asked if that was all.

"No, it isn't," I said. And I went on to explain that another reason why I can't display the flag is because the principles for which it stands are being ruthlessly attacked by an ever power-hungry and opportunistic government and happily surrendered by a populace perfectly willing to grant that government dangerous new powers to destroy freedom in a crusade to ostensibly defend it--all in the name of feeling "safer." I then offered a number of examples.

In the days following that interview, many more examples of this dangerous trend have surfaced.

The rhetoric is transparent. Phrases like "Americans must pull together to defeat terrorism and All Americans can help win the war against terrorism" are thinly veiled code for the idea that anyone who objects to the evisceration of the Bill of Rights is "un-American" and "for terrorism." When George W. Bush said to Congress on September 20, "Every nation in every region now has a decision to make. Either you are with us, or you are with the terrorists," naturally, he was also speaking to U.S. citizens. Either we support whatever our government wants to do now or we are "with the terrorists."

The elder George Bush, ex-president and former head of the Central Intelligence Agency, went so far as to ask on national television that civil libertarians not "tie the hands" of the intelligence community.

"Security" plans for airports are becoming oppressive, with armed personnel, luggage searches, and the use of profiling. (American Airlines has even said that, when it is fully back up to speed, it will be able to run only 80 percent of its former flight schedule due to the extra time necessary to implement all the new security measures.) Meanwhile, there has been an increase in the number of firms in the business community conducting criminal background checks on their employees.

More looms on the horizon. Brad Knickerbocker reports in the September 19 Christian Science Monitor that American history professor Warren Goldstein predicts government agencies will begin scanning customer lists of magazines, newspapers, journals, and online book sellers. "I think we're going to return with far greater electronic powers of surveillance to the kinds of things which were commonplace in the 1950s," he says. "Private businesses and organizations are also likely to increase their scrutiny of civilians," adds Knickerbocker.

A New York Times/CBS poll reports that 86 percent of those queried said they wouldn't mind guards and metal detectors at public buildings and events, and 69 percent said they'd be willing to arrive three hours early for a domestic flight, but only 39 percent said they would willingly allow government monitoring of their telephone calls and e-mail messages. "That means that there are 39 percent of the American people who would allow a level of governmental intrusion that you only have in American prisons or in the military during wartime," says Goldstein.

The government is opportunistically seizing this moment in a vigorous bid to increase the police power of the state. That became appallingly evident from Attorney General John Ashcroft's opening remarks at the September 24, 2001, House Judiciary Committee hearing. In the first few minutes, he said three things that set the stage for what was to come. First, he declared that the September 11 attacks were "not a criminal justice matter" and would be dealt with militarily. Then he said that the Justice Department's priorities were to "prevent first--prosecute second." Finally, in an amazing display of ignorance of historical facts, he added that "American rights and freedoms have been preserved" by the Justice Department in previous instances of national crisis and would continue to be protected now.

In response, and at the same hearing, the American Civil Liberties Union's National Legislative Counsel Rachel King presented an enumeration and analysis of the provisions in the "Anti-Terrorism Act" being pushed by the Justice Department. The ACLU's "Statement on Anti-Terrorism Act of 2001" pointed out that the Act would:

* allow "sneak and peak" searches--that is, it would grant the government broader powers to acquire a "secret" warrant to search premises when people are absent and haven't been notified

* make the penalty for attempted terrorism or conspiracy to commit terrorism equivalent in degree to the act of terrorism itself

* expand the definition of biological weapons and the prosecution thereof

* allow wider release, to more government agencies, of information secured by grand juries

* eliminate the statute of limitations in terrorism cases

* place some convicted felons who have completed their sentences under lifetime government supervision and expand the national DNA database while making no provisions for destroying DNA samples once they are no longer needed, thus allowing government highly personal information that is unrelated to an investigation.

The proposed anti-terrorism legislation would also authorize "roving wiretaps." This means that a suspect's "primary" phone or computer wouldn't be the only target of a warrant. One warrant could also authorize the wire-tapping of any "regular, cell, or any other" phone or e-mail ever used by a suspect. In other words, if a suspect uses a friend's or relative's phone, or a phone in your office or home, or communicates from your computer's e-mail account, your phone could be wiretapped and your e-mail infiltrated--indefinitely and without notification. And you would be at risk for prosecution as a co-conspirator under the expanded anti-racketeering provisions of RICO.

In an Associated Press story of September 19, Jesse J. Holland wrote that, according to a Justice Department analysis, the new proposals would allow police authorities to "seize billing information like credit card numbers from Internet companies without a court order." The proposals would also "expand the definition of a terrorist in the Alien Terrorist Removal Court to anyone who knows or should know that an organization they support in any way is a terrorist organization" and make it illegal to give "expert advice to terrorists"--such as teaching a person to fly who later turns out to be a terrorist or airplane hijacker.

Looking more deeply, in a September 23 article, "Hackers Face Life Imprisonment Under `Anti-Terrorism' Act" (at securityfocus.com), Kevin Poulsen notes:

   Hackers, virus-writers, and web site defacers would face life imprisonment
   without the possibility of parole under the proposed "Antiterrorism"
   legislation, which would classify most computer crimes as acts of
   terrorism.

      Violation of the Computer Fraud and Abuse Act, which makes it illegal to
   crack a computer for the purpose of obtaining anything of value or to
   deliberately cause damage, would be reclassified as a terrorist act.
   Likewise, launching a malicious program that harms a system, like a virus,
   or making an extortionate threat to damage a computer are included in the
   definition of terrorism.

To some who have suffered computer virus attacks, this might seem justified--until you look at specific recent hacker cases that could potentially qualify as "federal terrorism offenses" under the new proposals. For example, Jonathan "Gatsby" Bosanac, who was caught cracking telephone company computers, was sentenced to eighteen months in custody. If actions of this type were to be called "terrorism" in the future, taxpayers would be required to support such offenders in prison for the rest of their lives. Then there is the case of Eric Burns of Shoreline, Washington, who in 1999 placed the words "Crystal, I love you" on the website of the United States Information Agency. Should he have been sent to prison for good?

Poulsen further points out that as a "federal terrorism offense," the five-year statute of limitations on hacking "would be abolished retroactively--allowing computer crimes committed decades ago to be prosecuted today --and the maximum prison term for a single conviction would be upped to life imprisonment. There is no parole in the federal justice system."

In the September 17, 2001, New York Daily News, Richard Sisk reports that New York City is now the headquarters for the multi-agency Joint Terrorism Task Force. He adds: "U.S. Attorney Mary Jo White, top federal prosecutor for the Southern District of New York, has been given extraordinary powers to proceed in secrecy against anyone implicated" in the September 11 hijackings.

Nat Hentoff, writing in the September 26-October 2, Village Voice, asks the obvious questions: what does implicated mean? Reasonable suspicion? Probable cause? And how will we know whether basic due process has been afforded those "implicated" when search warrants and records will be sealed?

Ashcroft repeatedly states that the Bush administration wants Congress to act now on the Justice Department's "modest set of proposals" because of the very real possibility that terrorists are at this moment planning more attacks. "Terrorism is a clear and present danger to Americans today," Ashcroft said. "Each day that so passes is a day that terrorists have an advantage."

But there were at least a few heartening developments during the hearing. For example, Representative Robert L. Barr Jr., the true conservative Georgia Republican, asked, "Why is it necessary to rush this through? Does it have anything to do with the fact that the department has sought many of these authorities on numerous other occasions, has been unsuccessful in obtaining them, and now seeks to take advantage of what is obviously an emergency situation to obtain authorities that it has been unable to obtain previously?" Then Representative Barney Frank (Democrat--Massachusetts), a member of the House panel, appropriately recalled the "savage campaign of defamation waged by J. Edgar Hoover as head of the FBI against Dr. Martin Luther King." Points very well taken. Despite these positives, however, the subsequent House and Senate bills proved scarcely more thoughtful than the original proposals.

Scare tactics have always been employed by government and law enforcement to obtain more power over citizens. And the specific use of terrorist incidents for this purpose isn't new, either. Back in December 1996, in an article entitled "Freedom Is the Best Insurance Against Terrorism" (Freedom Daily), Sheldon Richman writes:

   Shortly after the blast at the federal building at Oklahoma City,
   [President Bill] Clinton asked Congress to pass a so-called
   counterterrorism bill. Congress obliged, giving the president the power,
   among other things, to deport aliens with secret evidence in the tradition
   of the old Star Chamber. What he especially wanted was expanded authority
   to wiretap our telephones. "We will continue to do whatever is necessary to
   give law enforcement the tools they need to find terrorists before they
   strike and to bring them swiftly to justice when they do," Clinton said.

Richman argues that when the people--seeking safety from the latest group of barbarians--give government more power, they betray what the United States stands for and end up making the terrorists the winners. Liberty is based on the idea that "the key to civil peace is not power but liberty." He further points out:

   Officials may say they will wiretap and spy only with court orders and only
   against proven criminals. But experience has long demonstrated that the
   government cannot be trusted to keep its word. It will bend or break the
   rules because the temptation will always be strong to do so. It will spy on
   advocates of unpopular causes and fringe religions. It will lie to get
   warrants. It will ignore the requirement to get a warrant altogether. The
   restraints intended to protect innocent Americans will count for little or
   naught. The more authority the government has to spy, the more dangerous it
   is for us.

All of this adds up to what is called prior restraint--the idea of controlling people before they can commit a crime. But an exercise of prior restraint must of necessity require either a crystal ball or incredible powers to invade privacy through surveillance. Such management of the public through flimsy evidence and evidence gathered intrusively are the methods of totalitarianism. "We are not safer when we give government the power to engage in preventive measures," Richman adds. "We must not let ourselves be stampeded into urging the government to mistreat us in order to save us from some alleged greater evil. That has always been a bad bargain."

Walter Dellinger, who served as acting solicitor general in the Clinton administration, now says: "With terrorism, our only defense might be infiltration and surveillance, so we're going to have to choose between security and privacy."

Some things never change.

Meanwhile, the FBI has been busy taking many "Middle Eastern" looking people into custody, only to find them innocent shortly thereafter. And we are seeing a rapid increase in checkpoints in public places where suspects are profiled by how they look and dress. Joyce Purnick writes in the September 15, 2001, "Metro Matters" section of the New York Times:

   At checkpoints set up at bridges into Manhattan this week, some drivers
   said that officers seemed to single out drivers who appeared to be Arabs or
   Muslims. (The officers said no, they stopped cars at random.) Thursday
   night at Kennedy International Airport, witnesses said that officers
   looking for people connected to the terrorist attacks were selective about
   whom they searched. "Anyone with dark skin or who spoke with an accent was
   taken aside and searched," one passenger said. "And then they went to any
   male with too much facial hair." That sure sounds like profiling--directed
   at Muslims or Arabs rather than at blacks and Latinos, the more likely
   targets of profiling in New York, but profiling nonetheless.

      Herman Badillo, candidate for the Republican nomination for New York
   mayor, said: "In times of war, too far is never too far. The first thing is
   to protect the population, and you cannot worry about people being
   concerned about being racially profiled."

Should we stop worrying about the treatment of immigrants too? Jonathan Peterson and Patrick J. McDonnal, writing in the September 23 New York Times, summarize some sweeping new immigration laws being proposed, which include:

* Permitting the jailing of even permanent legal immigrants without charge for indefinite periods. The new guidelines allow immigration authorities to extend the forty-eight-hour deadline for an unspecified "additional reasonable period of time." In practice, this could go on indefinitely.... Under these guidelines, a person could be deported today for having made a donation during the 1980s to the African National Congress, which was then engaged in military and political opposition to apartheid.

* Mandating that U.S. authorities jail and deport any non-citizen whom the attorney general "certifies" as a threat. Those targeted for alleged terrorist associations have no right to a hearing before an immigration judge.

* Allowing deportation of legal U.S. residents found to support even the lawful activities of a [sympathizer] organization that has never used or threatened to use a weapon.

* Broadening the grounds on which foreigners and their families may be denied admittance to the United States for suspected terrorist links, such as aiding a group that U.S. authorities say endorses terrorism.

The combined effect of all of this can't help but influence the public, official calls for tolerance notwithstanding. As of this writing, since September 11 there have been over 300 confirmed cases of violent incidents--either acts of violence or direct threats of violence--against Arab-Americans. Two people have been killed and at least five people who "appeared" to be Arabs have been removed from airplanes because either other passengers or flight crews (or both) said their presence made them uncomfortable. In a recent telephone poll of over 610 New York State residents over eighteen years of age, 34 percent said they support establishing internment camps for "individuals who authorities believe are sympathetic to terrorist causes."

This phenomenon of racial profiling is going hand-in-hand with an expanding use of face-recognition technology, which allows security cameras linked to computers to search a crowd for criminals. The use of this technology was widely decried when it was sprung on unsuspecting crowds at the January 2001 Super Bowl in Tampa, Florida. But now this invasion of privacy --which authorities claim "proved so successful" there---is gaining media praise. And this is taking us rapidly in the direction of a national identification card, complete with a computer chip. Calls are already being heard for this new "security measure," which would enable the authorities to keep pervasive track of everything we do and everywhere we go.

Unfortunately, the public is in a favorable mood for this sort of thing. In a CBS-New York Times survey released September 16, 74 percent of those polled said they would have to give up some of their personal freedoms to get Osama bin Laden "dead or alive."

Nat Hentoff explains this shocking statistic as a product not only of the events of September 11 but of the fact that "most Americans have only the dimmest notion of what their constitutional freedoms are--and what it took to get them. So there is little concern that they and other Americans can be caught in dragnets of suspicion by a government that has suspended much of the Bill of Rights."

Hentoff therefore calls on us to oppose such a coup d'etat against the Bill of Rights--rather than yield "to the beginnings of a police state for an indefinite period." He believes we still have time "to save the freedoms our government says we're fighting for." In support of this contention, he gives the following encouraging reminders:

   The Alien and Sedition Acts of 1798, which nearly destroyed the First
   Amendment, ignited enough opposition to elect Thomas Jefferson in 1800, and
   he released all those imprisoned by that law. The "Red Scare" of 1919 and
   the early 1920s--with its mass arrests of "subversives" in 33 cities,
   without a semblance of due process--was eventually seen by the citizenry as
   a disgrace. And in the 1950s, Joe McCarthy was finally overcome.

That sort of public response is needed now. These are times of great risk to the fundamental liberties we have come to take for granted. The greatest irony of all would be for us to permit the government to use the horrifying deaths of thousands of our fellow citizens to rationalize the destruction of the very ideals they valued most.

Barbara Dority is president of Humanists of Washington, executive director of the Washington Coalition Against Censorship, and cochair of the Northwest Feminist Anti-Censorship Task Force.