LP03: ACLU Rep. Ponders Liberty and Safety

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LP03: ACLU Rep. Ponders Liberty and Safety

by Ari Armstrong, May 7, 2003

"The Bill of Rights is my passion," Bill Hochman told Colorado Libertarians on April 5. Hochman, a university professor and Chair of the Colorado Springs ACLU, shared many concerns with Libertarians about the expanded power of the national government.

Hochman reviewed some of the historical threats to American liberties. The Alien and Seditions Act early in our nation's history violated the freedom of speech and restricted newspapers. The Supreme Court developed a "clear and present danger" doctrine in WWI that allows for less liberty in times of war. In WWII, Japanese Americans were rounded up and herded into camps as a matter of "military necessity."

After past wars, Hochman related, "civil liberties came back... but it never quite went back to where it was before." And now the United States is locked in a long-term battle with terrorism. "Can you tell when it's peacetime or wartime anymore?" he wondered, fearing constant attacks also on our civil liberties.

The so-called PATRIOT Act is "beyond what has ever existed before." "Passed in haste," the act is "very difficult to understand... many or most members of Congress had not even read the law before they voted on it." Terrorism is broadly defined, and the act allows "essentially blank warrants."

The new measures "violate the letter and the spirit of the Fourth Amendment," Hochman said. "The great protection... of the sanctity of our persons in our homes" has been eroded, and Hochman said he is reminded of the secret police used in repressive states. "The PATRIOT Act upsets the balance."

The act also allows searches of library records -- and librarians cannot even tell those who are at risk. "Limited judicial scrutiny" of executive powers is bound to lead to abuses. An independent judiciary is "essential to our system of liberty."

Meanwhile, the FBI has stepped up its infiltration of political organizations. Some people are arrested, held without evidence, prevented from talking with a lawyer, tried in secret with illegally seized evidence, and held by a "lower standard than reasonable doubt." In some cases, there is "no presumption of innocence." An "iron veil" now shrouds the executive branch.

So why did the PATRIOT Act pass so easily? In times of danger, Hochman said, "people invariably choose security over liberty." Yet "security versus liberty [is] the Devil's choice -- we want both." The question Hochman wants us to ask is, "At what point does added security outweigh the threat to liberty?"

"We were attacked... and we probably will be attacked again," Hochman feared. "If the threat is real, what liberties are we willing to see infringed for a greater measure of security?"

A tension arises, then, between the rhetoric of Hochman (and others associated with the ACLU) and market libertarians. For instance, David Kopel (who is a member of the ACLU though he often writes about economics and firearms) argued freedom is a necessary condition for liberty. Most libertarians claim a non-interventionist military policy would make the U.S. less susceptible to terrorist attacks. One crucial way to maintain security is to allow Americans the freedom to keep and bear defensive firearms, but of course the Second Amendment is not one the ACLU is typically as "passionate" about.

I have a problem speaking of rights as if they can properly be infringed for some other good. I have argued our rights are inaliable, though of course not all activities constitute a right.

Hochman listed three areas he thinks are open to debate, though, he said, "I'm very worried about their implications."

First, "some kind of extended surveillance," including surveillance of electronic communications, is arguably acceptable. Second, information about potential terrorist activity may be shared between law enforcement agencies. Third, Hochman wonders, "Is it reasonable to use various indicators to classify some people as more suspicious than others?"

But most libertarians (including the radical anarchocapitalists) are okay with some form of investigative work by police. There is no right to be free of an investigation reasonably associated with an actual crime. The question becomes, then, at what point do investigations begin to infringe our rights, and when do police powers become dangerously expanded? The difference between my explanation and Hochman's is both subtle and profound. He speaks as if we have to trade some of our rights for safety; I maintain our rights are inviolate but that not every freedom constitutes a right. The advantage of my position is that it allows a clearer line to be drawn in the sand. Once we start talking about which of our rights we should give up, I fear the beam is greased and sloped toward an oppressive state.

Hochman, though, was quick to point to a number of points on which civil libertarians must not budge.

  • "We must assert the Constitution of the United States is still there."
  • "We should not accept infringements on the First Amendment... The most robust debate and discussion is necessary."
  • Investigations of terrorists should be kept separate from domestic law enforcement.
  • "We should insist that due process be maintained... Secret trials are ominous and odious."
  • "We should resist government secrecy -- secrecy equals misdeeds."
  • The sunset should be kept for PATRIOT provisions "so they can be considered in a calmer time."
  • We must "insist that executive actions be conducted under judicial scrutiny" so as to maintain the separation of powers.

Hochman concluded, "The Bill of Rights is the great American tradition and we have to support it, we have to speak out for it on every occasion."

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