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It's A Free Country

by Danny Goldberg

Compared to those directly affected by the thousands of deaths on September 11, my family is lucky. We are lucky that although for weeks after the World Trade Center attack our Greenwich Village neighborhood smelled of acrid smoke when the wind blew north, we never had to abandon our home like our friends who lived further downtown in neighborhoods like TriBeCa. We are lucky that members of our family did not work in the World Trade Center--unlike the several people we know who died there.

We are lucky, but as I write this in June 2002, my kids still draw pictures of planes crashing into the World Trade Center, we still have the cheap plastic smoke masks that were suddenly on sale from street-corner vendors last fall, and from time to time my wife and I still wonder if New York City, the place in which we feel most at home, is really the right place to live.

I do not begrudge anyone their concerns about personal security.

But it's one thing to have passing emotions, fears, anger, and frustration, and entirely another to act on them without the filters of logic and history. Even more dangerous are government policies based on those emotions. Irrational emotions in the immediate aftermath of September 11 led a few misguided Americans to harass and in some instances brutalize non-Muslim brown-skinned immigrants such as Hindus and Sikhs, and to ostracize foreign-born Muslims who have no connection to or sympathy for terrorism, simply because of their religious beliefs. Acting on unfiltered emotions rather than balancing them with rationality has led to many of history's worst evils. This book is an attempt to create a rational and moral context in a difficult time.

The term "civil liberties" seems lacking in emotional reality, yet it represents civilization as Americans have come to cherish it, the balance that adds up to freedom as we know it.

Civil liberties transcend traditional left/right divisions. Because we wanted to get this collection out in time for the first anniversary of September 11, and because Victor Goldberg, Robert Greenwald, and I have spent our political lives most often on the left, there are a disproportionate number of lefties in this collection. We have tried to be vigilant in limiting their focus to civil liberties issues, but the after-effects of September 11 are so profound that some of our authors, especially those with an artistic bent such as Ani DiFranco and Michael Moore, took the civil liberties theme and migrated to a wider range of opinions that may offend some conservatives and pure civil libertarians. On the other hand, many of our friends on the left may be appalled that we included a conservative like Bill Clinton's nemesis, Representative Bob Barr, a Republican from Georgia.

Readers will also note that this volume includes a fair amount of repetition of key historical and legislative information pertaining to civil liberties in America; given that much of this information has not been widely reported in our history books or by today's news media, this repetition was unavoidable.

There are a thousand gradations of the trade-offs between security and freedom, and it is a big lie to pretend that there are two, and only two, choices. There are very few people who would consent to a law requiring everyone to walk through airport security devices in the nude, and there is almost no one who objects to walking through those same devices with their clothes on.

Even people who say they believe in torture to get information do not necessarily believe in the psychotic torture practiced by the worst governments. And even the most militant civil libertarian advocate of the broadest interpretation of the Bill of Rights believes that murderers should be arrested and prosecuted, and, if convicted, punished.

The issues discussed in this book are not bumper-sticker issues. But neither are they obscure. There is nothing obscure about being detained for weeks unable to talk to your family, or being fired from your job because of your political opinions. Meanwhile, there is no evidence that civil liberties protections helped cause the September 11 attack, nor any evidence that legislation, such as the more draconian aspects of the Patriot Act, would have helped prevent it.

The following are some security-enhancing measures that do not infringe upon civil liberties:

Prosecute people suspected of crimes under pre–Patriot Act law, which allows search warrants, surveillance (including wiretaps as long as a judge sees probable cause), arrests, limitations on bail (if the suspect can be proved dangerous), jail time up to life imprisonment, etc. These very tools have already created a prison population greater than any democratic nation in history.

Hire more police officers and give them special training to deal with terrorism.

Institute higher pay for security workers of all kinds. Since private business cannot generally afford this, such a plan would require government spending funded through--yes--taxes. The same polls that show people will give up "some" rights for security also show they will give up "some" taxes. More and better-paid security personnel, not only at airports but at train stations, on buses, in movie theaters, etc., would make us more safe.

Guard our borders with more soldiers, especially our porous northern border. Again, this is an economic issue, not a civil liberties issue, but surely it is better to know who is coming into the country.

The fact is, there are people in our body politic, and I think John Ashcroft is among them, who have always wanted more government authority and less personal freedom for ideological reasons having nothing to do with September 11. Such people have long advocated greater government and police powers and less personal freedom for Americans.

There has been no answer to Congressman Jerrold Nadler's haunting question on the floor of Congress during the debate on the Patriot Act: "If the sole purpose of the new powers granted to the FBI and other police agencies is to protect against terrorism . . . why weren't these powers limited to investigation of terrorism?"

I found a metaphor that spoke loudly to me in an article in the New York Times on February 27, 2002, about the official response in New Jersey to the 1999 murder of several high school students in Columbine, Colorado. Like the events of September 11, the school shooting and several others that preceded it created an understandable anxiety among parents and school officials, and government policies were changed to reduce the likelihood of such awful attacks occurring again. As a parent of school-age kids, I can easily relate to such concerns.

In this climate, many government and school officials who had long advocated clamp-downs on "difficult" kids were able to implement excessive policies that went far beyond protecting schools from violence. Instead of focusing solely on violent kids, such officials broadened their mandate to target all sorts of nonconformists, based on the kids' clothes, unorthodox political or religious views, or just smart-ass attitudes. The problem with clamping down on all smart-asses is that many of history's greatest figures were, as we know, at one time labeled "difficult."

One story that attracted my attention was about a fifteen-year-old boy named Michael Mallner from Livingston, New Jersey. In 1998, Michael and another boy were caught on a Saturday with a supposedly explosive device. The bomb squad was summoned. TV crews surrounded his house. Cops removed a computer from his room.

Prosecutors themselves later acknowledged that the boys weren't out to hurt anyone. The so-called bomb was a collection of relatively harmless objects, including M&Ms.

Instead of typical punishment--suspension, community service, probation--Michael was subject to onerous post-Columbine "zero tolerance" regulations. He spent six weeks at a juvenile center in Newark where he was attacked by other kids. He was expelled from school and a year later is still under house arrest, unable to go out except with permission from a parole agent, and then only with a parent. Michael wasn't able to attend his sister's bat mitzvah because he couldn't get approval in time--family outings are often denied. Michael is not allowed to use the Internet.

"If this had occurred ten years ago, none of this would have happened. The authorities can't see the difference between showing off, testing the boundaries--and killing people," Michael's dad Anton Mallner told the New York Times. As I read the story I reflected on my own teenage years during which I and many of my friends did things just as bad. What would our lives be like today if we'd been subjected to such draconian punishment?

What does any of this have to do with September 11? It demonstrates how genuine tragedy and danger can sometimes bring out unfair and irrational behavior from authorities. The threat of future terrorism is a thousand times scarier than that of future Columbines, and so is the possibility of overreaction-or idiotic reaction-in place of, or alongside genuinely needed enhanced security measures.

One of the encouraging aspects of American society in 2002 is the degree to which public opinion has internalized many civil liberties principals that only a few decades ago were considered esoteric. We want criminals arrested and punished but we believe that those accused of crimes have the right to remain silent, and have the right to an attorney. So far the public, and thus the government, have been much more cautious in infringing on individuals than during previous conflicts. This is cold comfort if you're a family member of the two thousand detainees. To sit in a jail cell without knowing what you're charged with, cut off from your family, unable to work, unsure of your future, is a Kafkaesque nightmare.

But government reaction has been nowhere near as bad as the Palmer Raids or Japanese internment or blacklisting/McCarthyism. Unfortunately, in this regard, Ashcroft's recent directive to "register" (i.e., fingerprint and photograph) 100,000 Middle Eastern men threatens to bring about a major historical setback. Ideas can seem flimsy and insubstantial when confronted with the pragmatic deadline of elections, or the power of armies or police, but ideas drive politics both in our country and around the world. The decades of steady, lonely work by civil libertarians, especially since the blacklisting years, has paid off in the currency of today's debate. Questions are asked about how we treat unpopular residents and citizens and those suspected of crimes that were not asked of those in authority in epochs past.

Let us do our part to further strengthen this vision of democracy that includes the rights for our worst enemies that we wish for ourselves.

Danny Goldberg is Chairman of Artemis Records, an independent company with an artist roster that includes Steve Earle, Rickie Lee Jones, Warren Zevon, Boston, Kittie, and Khia. A longtime political activist, Goldberg is on the Board and Executive Committee of the NYCLU, and is President of the ACLU Foundation of Southern California. He has written for The Nation, The American Prospect, Los Angeles Times, and Tikkun, for which he served as co-Publisher along with his father Victor.

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