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Jewish Journal

Justice at War

by Douglas Mirell

September 20, 2001 | 8:00 pm

Sept. 11, 2001.

It has already become a cliché to say that this is the 21st century's "date which will live in infamy." Yet, as analogies to the attack upon Pearl Harbor continue unabated, precious little attention has been devoted to the aftermath of that and other national horrors upon the lives of ordinary Americans. For if truth is indeed the first casualty of war, then certainly our civil rights and civil liberties have frequently been war's second casualty.

Only about 10 percent of today's Americans are old enough to remember where they were on Dec. 7, 1941. Even fewer will recall that it took almost three months for Commanding General J.L. DeWitt to issue his infamous civil exclusion orders that declared "the entire Pacific Coast ... subject to espionage and acts of sabotage," thereby setting the stage for the evacuation and internment of "all persons of Japanese ancestry." The landmark conviction of Fred Korematsu for violating this exclusion order was vacated in 1984. Finding that the government had improperly suppressed, destroyed and distorted evidence that would have undermined the government's claim of "military necessity," U.S. District Judge Marilyn Hall Patel wrote: "In times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. In times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.... In times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused."

Of course, the establishment of homegrown concentration camps to intern Japanese Americans during World War II was neither the first nor last time our government ignored civil liberties during times of national crisis. The 1917 Espionage Act and its 1918 amendments (popularly known as the Sedition Act) were used to suppress all criticism of the federal government in a manner most reminiscent of the notorious and discredited Alien and Sedition Act of 1798. After World War I, the attorney general staged thousands of raids against those suspected of having communist or anarchist ties. Nearly all those arrested were released.

The pre-World War II popularity of the American Communist Party also brought about the early Cold War era and led to passage of the infamous Smith Act -- the first peacetime sedition law in American history. In the aftermath of World War II, President Harry S Truman issued Executive Order 9835, which greatly expanded the federal loyalty oath program. The Korean War and rampaging McCarthyism assured passage of the 1950 Internal Security Act (popularly known as the McCarran Act) targeting Communist and so-called "Communist-action" organizations. The 1950s "Red" scare also saw the ascendancy of a House Un-American Activities Committee that incubated a nation of informers and resulted in a massive program of both official and government-abetted blacklisting -- especially in the motion picture, radio and then-nascent television industries. More recently, the 1995 Oklahoma City federal building bombing prompted a spate of legislation restricting the rights of immigrants and prison inmates -- even though neither Timothy McVeigh nor Terry Nichols fit either of these categories.

Viewed through this historical prism, how are we faring so far in the wake of last week's airborne Armageddon?

Within one day of the East Coast attacks, Republican Senate Minority Leader Trent Lott declared: "When you are at war, civil liberties are treated differently. We cannot let what happened yesterday happen in the future." A San Francisco Chronicle editorial likewise intoned: "We have to be tough, even if civil rights do take a beating for a time." And an ABC News-Washington Post poll taken shortly after last week's catastrophic tragedies found nearly 66 percent of Americans prepared to forfeit at least some of their civil liberties in order to combat terrorism.

These sentiments were turned into action by week's end, when the U.S. Senate, acting in the dead of night, amended an ordinary appropriations bill to add a measure that will expand federal law enforcement's authority to wiretap computers and streamline the process of getting wiretap permission. The amended bill passed on a voice vote, despite the concern expressed by some senators that it was being rushed to the floor with little thought given to this new government power to monitor our personal e-mail and Internet communications.

Vigilantism has also reared its ugly head. Despite prominent warnings against scapegoating by leaders ranging from The Jewish Federation's John Fishel to President George W. Bush, the Council on American-Islamic Relations reported 210 incidents of anti-Muslim violence or threats of violence in just the first three days following the horrific acts of terrorism in New York, Washington and Pennsylvania. These incidents include at least six firebombings of Islamic centers and mosques throughout the nation, a series of assaults in New York and shots fired at an Irving, Texas, mosque. These physical attacks have been accompanied by countless telephonic and e-mail death threats and other expressions of hate directed against Arab American and Islamic groups and centers.

These developments should cause alarm because they undermine the diverse, free and open society we value so dearly -- the very society our imminent war against terrorism is intended to protect. They also may foreshadow the kinds of attitudes that permitted the even more egregious forms of governmental repression that have accompanied many of the other wars our nation has fought.

As we continue during these High Holy Days to reflect upon and mourn the victims of terror, and as we share the grief of their families and friends, let us pray that the past does not become prologue. Let us pray that neither our government nor our fellow citizens turn their wrath upon those who happen to share the religion, ethnicity or national origin of those who planned or perpetrated the perfidious acts of Sept. 11. Finally, let us pray that -- mindful as we are of the need for heightened vigilance -- we do not sacrifice our sacred constitutional rights and liberties on the false altars of "national security" and "military necessity."

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