‘Liberty Is a Fragile Thing’


After the most savage random attack in history on the people of this city, can the guarantees of the Bill of Rights prevail—freedom of speech and press that even includes advocacy of violence; the protection of each of us against government violations of our privacy, including our right of association with those under suspicion by the authorities; and most basic of all, our right to due process? No arrests without probable cause; no indefinite interrogations behind closed doors, without a lawyer, in the name of “national security.”

All of this sounds rigidly, ingenuously abstract in the face of the thousands of dead and maimed last Tuesday.

As I write this, I have a message on my answering machine from my daughter, Jessica, who runs the Everyday Circus in St. Louis and has three very young children, all of whom are in that circus—and are just as lively and as resilient at home.

“How can I explain this horror to them?” Jessica asks. “How can I explain how people can do this?”

What I’d say to my grandchildren is that there are people everywhere in this world who identify themselves totally with a system of belief—whether political, religious, a poisonous fusion of both, or some other overwhelming transcendence that has become their very reason for being. These vigilantes of faith have unequivocally answered the question of Duke Ellington’s song “What Am I Here For?”

Such people can be of any faith, color, and class. Palestinian suicide-bombers; the self-exhilarating murderous fringe of the Weather Underground here in the “revolutionary” 1960s; John Brown, the abolitionist executioner; and the self-betraying pro-lifers who urge the killing of—and sometimes actually assassinate—doctors who perform abortions.

How can our American government—and how can we—protect ourselves against such “holy” fanatics? Our government already has the ingenious technology to subvert what remains of our privacy. But that very technology, financed by us, could have—and should have—been used to penetrate the extensive and expensive preparations for the remarkably efficient coordination of last Tuesday’s terrorism.

But despite all the resources of the CIA and FBI, as well as the National Security Agency’s “Echelon” project that monitors, by satellite, communications all over the world, there is a systemic failure of our intelligence operations. Surely something can be done about this. The Evil Empire is no longer one nation, the Soviet Union. It is a peripatetic, virulent state of mind.

Will America never be the same after September 11? I would phrase the question differently. Will America again be so captured by fear as to cast a net of suspicion over growing numbers of its own citizens?

Last Tuesday, a friend, an inveterate civil libertarian, called me as broken bodies were still being placed on stretchers.

“This is going to cause a surge by government—local, state, and federal—to shred the Bill of Rights,” he said. “And it will be cheered by an enthusiastic, indignant public.”

If he’s right, and American history would indicate he is, the relatively few uncompromising civil libertarians among us will again be regarded with contempt and continuous suspicion by both the authorities and the populace—as took place during the “Red Scare” of 1919 and the 1920s, when J. Edgar Hoover first emerged as the special assistant to Attorney General A. Mitchell Palmer, who put him in charge of the summary deportation of legions of alleged radicals, subversives, and “Bolsheviks.” As a reward, Hoover rose, in 1924, to be the director of the Justice Department’s Bureau of Investigation, which became, 11 years later, the committed mugger of the Bill of Rights: the FBI.

Continued terrorism could also easily return us to the era of the junior senator from Wisconsin, Joe McCarthy, who rode high and recklessly on the esteem of much of the citizenry—and a significant portion of the press. Even the usually dispassionate Webster’s American Biographies notes that “his slanderous attacks on persons who were not only innocent but defenseless gave rise to the term ‘McCarthyism’—referring to such tactics.”

It could happen here again, especially with the Left so riven by its own wars of identity politics—and meager regard for its internal opponents’ free speech—that it might be difficult to organize a united front against resurgent McCarthyism.

Meanwhile, a September 12 Washington Post poll reveals: “Two in three were willing to surrender some of the liberties we have in this country to crack down on terrorism.”

Keep in mind, too, that the present attorney general is John Ashcroft, and also that this is the Rehnquist Supreme Court, with liberals Stephen Breyer and Ruth Bader Ginsburg hardly having the same fierce devotion to the Bill of Rights as William O. Douglas, William Brennan, and Thurgood Marshall. (John Paul Stevens sometimes comes close.)

Unless a band of true constitutionalists can beat back a fear-driven, popular war on free speech, free press, privacy, and due process, under the banner of national security, much of America will ignore the warning of Supreme Court Justice Anthony Kennedy: “The Constitution needs renewal and understanding each generation, or it’s not going to last.”

Already, as the First Amendment Center’s State of the First Amendment Survey 2001 shows, the majority of Americans believe that the government should hold the press in check and that public speech which offends racial or religious groups should not be permitted.

Moreover, only 53 percent strongly agree that “newspapers should be allowed to publish freely without government approval of a story,” and only 57 percent agree that “newspapers should be allowed to criticize public officials.”

The late Justice William Brennan—who became a dissenter for liberty when the Burger and Rehnquist courts put him in the minority—was an optimist about the future of freedom here. He believed, he told me, that eventually the Supreme Court would regenerate the Bill of Rights.

Yet he had his moments of fear for what could happen. In one of our last conversations, he said to me, “Look, pal, we’ve always known—the framers knew—that liberty is a fragile thing.”

And William O. Douglas once reminded a group of young lawyers that the guarantees of the Bill of Rights are “not self-executing.” We have to continually make them work. “As nightfall does not come all at once,” Douglas added, “neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of darkness.”

Already, Arab Americans among us are being demonized and reviled—not by the government but by fellow citizens on the streets of New York. Their liberty has become fragile.