We are still free. For the most part. For now.
But on this Fourth of July, 227 years after 13 tiny colonies told a British tyrant to get off their backs, those colonists’ descendants are locked in new fights for freedom, several experts told the Tribune.
The struggle has intensified since the terror attacks of Sept. 11, 2001. The murder of 3,000 Americans on their own soil goaded the federal government into imposing stricter security measures than most of us had seen in our lifetimes — measures that some fear threaten the foundations of personal liberty.
The terrorist atrocities also prompted U.S. invasions of Afghanistan and Iraq. The latter, only months ago, ignited a fierce debate not only about war itself but also about to what extent Americans — the Dixie Chicks come to mind — should be able to object to their government’s actions.
The battle front extends across the breadth of the entire Bill of Rights, and it has made allies of those who normally stand poles apart on the political spectrum — people like Eleanor Eisenberg, executive director of the Arizona chapter of the American Civil Liberties Union, and Russell Pearce, an ardently conservative state representative from Mesa.
“We continue to be extremely concerned about the violation of civil liberties under the pretext of security,” Eisenberg said.
“I’m deeply troubled by the loss of freedom, and it comes in a lot of ways,” Pearce said.
Eisenberg said freedom has won some skirmishes lately, most notably when the U.S. Supreme Court ruled last week that government has no business policing private sexual activities between consenting adults. But she fears the federal government’s antiterror campaign is far too heavy-handed.
She and Pearce singled out the USA Patriot Act, which Congress passed with lightning speed as the rubble of the World Trade Center still burned. The law expands government search powers and throws a blanket of secrecy over antiterror operations. It is supposed to expire in 2005, and Eisenberg said Congress recently beat back an attempt to make its provisions permanent.
“The ACLU has filed at least 30 challenges to aspects of the USA Patriot Act and to its implementation,” Eisenberg said. Lower courts have tended to uphold the challenges, but appeals courts have not.
Last month, a three-judge panel from the U.S. Court of Appeals for the District of Columbia, basing its opinion on the Freedom of Information act, ruled that the Justice Department does not have to reveal the names or other information about people it has detained in the antiterror campaign.
A government that operates in secrecy, Eisenberg said, is dangerous. In fact, the Bush administration is even mum about a possible and even more draconian sequel to the USA Patriot Act, a measure called the Domestic Security Enhancement Act of 2003. It has not been introduced in Congress; some civil libertarians suspect it won’t be until a new national emergency makes its passage by panicked lawmakers more likely.
“The government isn’t talking about it,” Eisenberg said. “And that is consistent with one of our major concerns, and that is the government is not talking much at all about what it is doing, to whom it is doing it, how it is being done, why it is being done.”
And lest Americans think the war on terror affects only foreign nationals, Eisenberg said, “There have been at least three U.S. citizens held secretly or without charges.”
One of them, Ohio truck driver Iyman Faris, a naturalized citizen, was arrested secretly early this year and pleaded guilty on May 1 to terror-related charges in secret proceedings that were revealed only last month.
Eisenberg said she thought the passage of time would mitigate some post-Sept. 11 assaults on civil liberties, but her alert level remains high. “There is talk in Oregon and possibly in other states of declaring protest as an act of terrorism,” she said. “That is very frightening.”
Pearce is frightened, too. It is the USA Patriot Act that gives him the most qualms.
He had hoped to introduce a resolution against the law in the Arizona Legislature this past session, but the state budget battle left no time for that. Some cities and states have adopted similar resolutions, which Pearce called a “postcard to Washington” expressing Americans’ desire for freedom.
“The Patriot Act goes too far,” he said. “It treads very heavily on the principles of freedom that our people fought and died for.”
Pearce said several constitutional freedoms are under direct attack. He likened “hate crimes” legislation to George Orwell’s novel “1984,” in which people are punished not merely for what they do but also for what they think. He believes Americans’ right to speedy and fair trials is in danger, as is the right not to be coerced into self-incrimination. And he believes the Second Amendment, which guarantees the right to keep and bear weapons, also is under siege.
Joining him in that belief is Valley resident Alan Korwin, whose book “Gun Laws of America” is one of seven he has written on gun ownership.
“The right to keep and bear arms is under continuous attack from the political left,” Korwin said, “and citizens who care about this part of the Bill of Rights need to be vigilant and politically active to defend this most fundamental human right.”
Korwin said the U.S. Supreme Court has consistently upheld gun ownership as an individual, not a collective, right, but “the political left would like to disarm the public, and that’s not a secret.”
The issue is crucial, he said. “Guns save lives. Guns stop crime. And most important, guns are why America is still free.”
Phoenix lawyer Marty Lieberman toils in behalf of another part of the Bill of Rights — the Fourth Amendment, which forbids the “unreasonable” seizure of private property by governments.
“The Fourth Amendment is limping along, barely,” said Lieberman, who helps people recover property taken in government seizures on suspicion the property was involved in crime. Often the crime is a suspected drug offense. “I call it shoot first, ask questions later,” Lieberman said.
Changes to the seizure laws have mitigated some of the worst abuses, he said, but the process is still unjust. If a person challenges a seizure and loses, he has to pay all the government’s legal costs. But seldom does the government have to pay legal bills for a vindicated property owner.
Getting property back is so expensive — legal costs can easily hit $15,000 — that often the owners will just give up or cut a deal, Lieberman said.
Frank Navarette, Arizona’s new homeland security director and a career law enforcement officer, acknowledges the difficulty of balancing security and freedom. It’s particularly tough on the Mexican border, he said. Closing the border would limit illegal immigration, but it also would hinder commerce and freedom of movement.
“In Arizona we are safer today than we were six months ago. I can guarantee you that. And we will be safer six months from now than we are today,” Navarette said.
“There may be people in this country that might believe they’re not as free as they were 15 years ago, but I haven’t seen any of that in Arizona, and I think that’s important.”
But Eisenberg, who was arrested last fall in downtown Phoenix during protests that greeted a visit by President Bush (charges later were dropped), thinks the rights of all Americans are in danger.
“Many, many of the measures the government is taking under the guise of security are ineffective,” she said. “They are so broad that they catch too many innocent people, and they don’t have any assurance of catching the guilty.”
She and Pearce referred to a famous quotation by Ben Franklin, one of the colonial leaders who adopted the Declaration of Independence in Philadelphia in 1776: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
“At the end of the day we’ll have neither,” Eisenberg said.
Pearce agreed. While acknowledging we still enjoy many constitutional freedoms — no government agent censored this article, for example — Pearce said, “You lose them incrementally. Pretty soon we no longer have what we thought we had.”