One day after hijacked planes slammed into the World Trade Center towers and the Pentagon, U.S. Sen. Russell Feingold took to the Senate floor and agreed with fellow legislators who had likened the horrifying attack to the Japanese assault on Pearl Harbor some 60 years before.
But Feingold, a Rhodes scholar, Harvard Law School graduate and chairman of the Constitution subcommittee, extended the comparison, issuing a statement that transformed the World War II analogy into a cautionary tale for his colleagues and the country.
Feingold cited the internment of Japanese-Americans during World War II, then mentioned other historical chapters such as the illegal detentions during the Civil War and the surveillance of anti-war protesters during the Vietnam War.
"Let us not allow this piece of our past to become prologue," Feingold said.
But legal scholars, civil libertarians and members of conservative research institutions fear that lessons from the past will indeed be ignored, and that national crisis will once again translate into constitutional encroachment. They provide a long list of constitutional principles, including equal protection under the law and the ban on unreasonable searches and seizures, that could be jeopardized as Americans try to balance heightened safety concerns with their long-standing embrace of civil liberties.
"There could be serious threats against free speech rights, serious threats to rights against racial discrimination, serious threats to rights protecting privacy," said Martin Redish, a professor of constitutional law at Northwestern University. "History does not make me optimistic about what will happen here."
Throughout American history, the U.S. government has responded to catastrophe and international threat with legislation restricting civil liberties in ways large and small, legal scholars say.
At the 20th Century's start, Congress responded to an anarchist's assassination of President William McKinley in 1901 with an immigration law permitting exclusion of people based on their belief in anarchist principles. At the century's end, Congress responded to the Oklahoma City bombing with a bill that criminalizes fundraising for groups determined to be terrorist groups and permits deportations based on secret evidence. Both measures are rooted in guilt by association, a principle that is normally condemned but in these instances tolerated.
Such laws frequently wend their way to the federal courts, where judges inevitably conduct a balancing act between the interests of security and unfettered freedom.
Mixed reaction from court
In a 1963 case involving Congress' power to draft citizens into the military, U.S. Supreme Court Justice Arthur Goldberg wrote that "while the Constitution protects against invasions of individual rights, it is not a suicide pact." Nearly 10 years later, in a case that tangentially involved an airline's use of a secret hijacking profile to screen passengers, Walter Mansfield, a federal judge in New York, wrote that "the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquillity alike."
The U.S. Supreme Court has produced a mixed record historically when asked to rule on wartime restrictions of liberty. Though the court upheld the internment of Japanese-Americans during World War II, it refused to prohibit publication of the Pentagon Papers during the Vietnam War.
Redish said the court's ruling in the World War II case marked a "total abdication" of the court's responsibility.
"Supreme Court justices get caught up in the paranoia of the age, and they're not supposed to," he said. "That's why they get life tenure and why their salaries can't get reduced."
The restriction of liberties while waging war or combating terrorism has hardly been unique to the U.S.
In Britain, the spasmodic dilution of civil liberties has been dubbed by critics as "the politics of the latest atrocity."
Starting in the 1970s, British officials responded to Irish Republican Army-linked bombings with such measures as creating special courts for suspected terrorists and by allowing police to detain suspects for up to seven days without formal charges or an appearance before a magistrate.
Legal scholars say some of the U.S.'s most regrettable episodes occurred during attempts to shore up national security, including the Alien and Sedition Acts in 1798 and such Civil War measures as the occasional suspension of free speech.
Officials show concern
Dennis Hutchinson, a professor of legal history and constitutional law at the University of Chicago, said he's heartened by the manner in which public officials, including President Bush, already have expressed concern about potential threats to civil liberties and how they have condemned threats or violence toward Arab-Americans.
"The past may be prologue in some cases, but it may not be here," Hutchinson said.
Still, Tim Lynch, a director with the Cato Institute, a Washington-based libertarian research group, said his organization believes there is a danger that Congress will move hastily in the wake of the recent terrorist attack and pass ill-considered legislation that will be regretted in years to come.
"There's this impulse on the part of everybody in our society right now to do something. That's why people are lining up to give blood. Legislators have the same feeling, and what they do is pass laws," Lynch said.