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by Christopher Edley Jr.
Published in The Washington
Times
October 2, 2002
In the rushed congressional battle over the Department
of Homeland Security, partisan combat over civil service rules has
eclipsed an issue of great importance to many more Americans. While
consolidating and expanding the government's ability to reduce security
threats, will we simultaneously enhance safeguards against risks
to civil rights and liberties? Risks which both distant and recent
history show to be quite substantial?
There is a steady flow of controversies: What added
safeguards are needed for visas and at ports of entry, and directed
at whom? When will an alien be designated a "person of interest,"
and when might that or some other determination trigger restricted
access to counsel, a secret hearing, or indefinite detention? When
and how might an alien or even a U.S. citizen be designated an "enemy
combatant," and then afforded a markedly lower standard of
due process?
Does the failure of a "legal" alien to file
a change-of-address form always justify detention and deportation
alien? What quantum of evidence justifies surveillance of places
of worship, or of immigrant community groups?
No one argues that security concerns are entirely
fictional, and only a few deny that some policies warrant civil
liberties anxieties, if not outrage. Libertarians of the left and
right are concerned about the accretion of governmental power, which
they deem threatening, ipso facto.
For the rest of us, the controversial assessment of
competing risks to liberty and security is murkier. In particular,
along with our diversity come battle lines largely reflecting the
structure of dissent, protest, and power in America.
Civil rights leaders and immigrant groups seem unanimous
in their belief that the communities they represent are most likely
to bear the collateral damage in the war on terrorism damage in
the form of discounted rights, and lip-service liberties.
Admittedly, the plausibility of such fears is judged
through the prism of experiences, and our experiences are color-coded.
[This is, after all, America.] Nevertheless, even conservatives
care about the liberties, and about the broad legitimacy of the
homeland security effort. Aren't these the conditions for consensus?
So, for all of us, the pending legislation should
do four important things and there is every possibility for bipartisan,
left-right agreement on each of them, given time and oxygen for
conversation.
First, the legislation can ensure that the substantive
concerns around civil rights, civil liberties and privacy are represented
in policy counsels. The Gramm-Miller-McConnell bill favored by the
White House does not do this, while the Lieberman bill [and the
House bill as well] would create a "civil rights officer"
and a "privacy officer." Certainly no guarantee of any
particular substantive balance, but at least a promise of informed
bureaucratic deliberation.
Second, the legislation should create a Senate-confirmed
deputy inspector general with the independent monitoring powers
needed to determine exactly what the formal and informal policies
related to civil rights and liberties actually are, because the
potential for policy confusion, vagueness or secrecy is substantial
and unhelpful. How can Congress and the public keep tabs on the
policies if what the executive branch freely discloses is only the
tip of the iceberg?
Third, the legislation can empower that deputy inspector
general to investigate whether officials are actually complying
with those policies, whatever they are. The accountability icing
on this should be regular reports, some classified and some sanitized,
for the president and Congress.
Fourth, this watchdog capacity should be governmentwide,
matching the governmentwide coordination responsibilities of the
new department. After all, much of the antiterrorism effort will
be waged by other agencies. If those other inspectors general for
some reason decline to monitor civil rights and civil liberties
issues, the new office should have backup authority to do so.
As of now, a strong oversight mechanism remains missing
in both Senate bills, but there is some bipartisan interest in strengthening
the Lieberman bill achieving perhaps half a loaf. Perhaps, through
the politically charged procedural thicket, the Gramm-Miller-McConnell
alternative could be strengthened as well. The administration has
not seemed hostile to some civil liberties improvements, so gains
seem politically feasible if anyone pays attention.
We sometimes do things in the name of security that
we regret in the morning, and communities with little power are
most vulnerable to official excess. The immediate danger is that
the rush to legislate may not equip an agency watchdog with the
right tools: a microscope and a cattle prod, not the sunglasses
and feather duster in the present bills.
Congress should reassure both the comfortable and
the vulnerable among us, with a mechanism to create accountability
and informed debate in years to come about the balance of security
and liberty.
At stake is the long-term legitimacy of the domestic
war effort, which requires a vital, continuing examination of collateral
damage to our liberties.
Christopher Edley Jr. is a professor at Harvard Law
School and co-director of its Civil Rights Project and a member
of the U.S. Commission on Civil Rights.
Copyright 2002 News World Communications, Inc
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