Are your freedoms being threatened?

Posted: Monday, June 17, 2002

WASHINGTON -- Select any moment in American history and you can find agitation about the meaning of the Constitution. Right now, though, the pondering, probing and hand-wringing have reached something of a constitutional clamor.

Secret detentions, wiretaps on lawyers' conversations with clients, military tribunals, monitoring of ordinary Americans. Each day seems to bring new worries about this or that constitutional freedom being infringed -- a concern shared in some cases by judges who have blocked the government's course.

American Jose Padilla, suspected of intending to explode a radioactive dirty bomb, is being held indefinitely in the United States as an ''enemy combatant,'' charged with nothing. Another American-born suspect, captured in Afghanistan, is held stateside in similar circumstances.

The commotion is not all tied to the government's investigative zeal in the aftermath of Sept. 11. Constitutional questions are brewing on a range of issues, including campaign financing, Internet pornography and the right to bear arms.

What's going on here? Is the Constitution under assault? Is the Bill of Rights under siege? Or is this just the normal give-and-take of a society that is always redefining its relationship with government?

Civil libertarians say the Bush administration has proposed -- and imposed -- a whole series of measures that threaten constitutional rights.

''The Constitution is always at risk in times of crisis, and our history has taught us that there is a tendency to overreach on security, and then with hindsight to regret what we have done,'' said Steven Shapiro, legal director for the American Civil Liberties Union.

They say the get-tough mindset was there before Sept. 11 and that the terror attacks have emboldened the administration to push for things it would not have dared to try previously.

But even liberal scholars say it is understandable for new constitutional questions to arise with the fight against terrorism, the arrival of a new president and the growing role of the Internet and other technological advances.

''There are a series of unresolved issues, but the president and the attorney general have not come close to attacking the Constitution,'' said Cass Sunstein, a liberal University of Chicago law professor. ''It's more accurate to say we have new legal issues where people are not sure how to think.''

Eugene Volokh, a conservative law professor at UCLA, sees ''a lot of smoke without fire'' in the hue and cry. ''The overwhelming majority of the objections that are raised, ultimately on reflection, prove to be rather groundless.''

Ordinary Americans seem willing to surrender some civil liberties if they think that will make them more secure, surveys find. But they think the loss of liberty will infringe on somebody else's rights -- not theirs, says Michael Traugott, a research scientist at the University of Michigan's Center for Political Studies.

''They think they won't be affected, and implicitly, they think it's relatively short term: 'The Constitution is not going away; we're just not going to pay attention to some parts of it for a little while.'''

That is a dangerous attitude, in the view of Yale University law professor Jack Balkin. He says Americans need to speak out as the first line of defense for their personal freedoms.

In wartime, courts tend to give the president leeway. But this time, a few court rulings already have gone against the administration, a display of judicial backbone surprising to Balkin.

In Michigan and New Jersey, federal district judges have ruled against the government on keeping deportation hearings secret, although a New Jersey state appeals court said last week the government could not be forced to release names of detainees.

In Virginia, a federal judge ordered the government to let an American-born prisoner captured in Afghanistan meet privately with an attorney.

In the latter case, the government had contended that as a captured combatant, Yaser Esam Hamdi can be held indefinitely and is not entitled to a lawyer because he has not been charged with anything.

''That sounds idiotic, doesn't it?'' asked U.S. District Judge Robert G. Doumar. His ruling is under appeal.

A similar challenge is forming over Padilla, arrested upon his arrival in the United States.

''My client is a citizen,'' said attorney Donna R. Newman, objecting to his transfer to the twilight zone of military detention. ''He still has constitutional rights -- the right to counsel, the right to be charged by a grand jury. ... And they have not charged him.''

Constitutional debates are playing out on any number of other issues. Balkin says that's ''common to every moment in American history.''

Constitutional protections are constantly measured for their fit with new issues and the prevailing philosophy in Washington. A few recent examples:

Last month, the Supreme Court partially upheld a federal law meant to keep Internet pornography from children, but it kept alive a fight over whether the measure was an unconstitutional intrusion on free speech.

New restrictions on campaign contributions and spending, reluctantly signed into law by Bush, are being challenged on free speech grounds by Democrats and Republicans alike.

The Bush administration last month reversed a decades-old Justice Department policy by arguing to the Supreme Court that the Second Amendment protects an individual's right, rather than a collective right, to possess firearms.

Beyond questions about what is in the Constitution, there is constant pressure to change it.

Nearly two dozen proposed constitutional amendments were introduced in just the first 20 days of the current congressional session. Bush has endorsed one that would guarantee rights to crime victims.

But only 17 amendments have been approved over more than 200 years.

The last one, about pay raises for members of Congress, was ratified in 1992. It was first proposed in 1789.

Constitutional Issues: At A Glance



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