Association of Libertarian Feminists

ALF News

Liberty and Safety

by Joan Kennedy Taylor

     Observers of the libertarian movement could hardly escape noticing that libertarians are not speaking with one voice about the disaster that has hit New York. Harry Browne, two-time Libertarian Party nominee for president, issued a statement saying that the attack was a logical response to an "insane" foreign policy. Others see it as an exercise in jealousy - an expression of envy of our economic freedom and mistrust of our secular state. As columnist Steve Chapman put it, "Freedom and openness are the most conspicuous and admirable features of our society, but they infuriate those intent on exercising control over their fellow man." Representative Ron Paul (R-Texas), who himself is a past presidential nominee of the Libertarian Party, said in the House that "if these two conflicting views are not reconciled we cannot wisely fight nor win the war in which we now find ourselves." And to win the war, he went on, we must have security without sacrificing personal freedom.

     But how do we accomplish that? Polls in the weeks after the attack seemed to indicate that two-thirds of Americans said they would be willing to "give up some of the liberties we have in this country in order for the government to crack down on terrorism" (Washington Post/ABC poll), and a third of New Yorkers even said they would favor internment camps for "individuals who authorities identify as being sympathetic to terrorist causes" (poll from the Siena College Research Institute).

     In the wake of the World Trade Center bombing, many people are finding that the devotion they profess to civil liberties is more unexamined than they might have thought. Is free speech absolute? Under what circumstances can people be detained by the authorities? We accept traffic cops without a thought - what other regulation of our activities make sense? As I write this, New York City is full of law enforcement people from all over the country, who came here volunteering to help the exhausted, hard-pressed New York City police who have been working day and night to rescue the wounded and find the corpses in the rubble. They and their colleagues from out of town and the magnificent members of our fire department are more than public servants, they have been our saviors. Who wouldn't want to do anything they asked, to make their job easier?

     It seems obvious that we and our belongings must be searched as we go from place to place, must carry identification at all times, must if asked, submit to interrogation. It makes sense that we can't drive our cars without passengers, go into danger zones, even return to apartments near the disaster area if our presence would impede the clearing work. It's not quite so clear why we can't take personal photographs of the rubble, but if that's what our beleaguered mayor wants, so be it. We have all escaped death, some of us narrowly, and most of us know some who haven't. The city, perhaps the country, is still in a state of emergency.

     And there is something positive about emergency. Working with others in the face of disaster, overcoming disaster in tandem with others, gives a sense of community, of comradeship that is rare in our atomized, individualistic society. We suddenly don't want to be alone - and to our surprise, we find that we are not. Distant relatives phone, overseas acquaintances e-mail, neighbors stop in, families take time to be together. (Even the Congress wants to work together, and to give the Administration what it wants and needs.) Patriotism in times such as this, after all, is a heightened sense of being and working together to overcome disaster. Nobody likes disaster, but we love the purposeful community it breeds.

     It's not surprising, as we emerge from shock into patriotism, that for some of us a devotion to civil liberties doesn't seem immediate. The first reaction is that almost all of us have nothing to hide, so we will band together in order to help the cause, whatever it is. GOP News and Views, the online newsletter of the Republican Liberty Caucus, a group of libertarian-leaning Republicans, published snippets of messages that said, essentially, as one reader did, "People may find it alarming that our government is seeking to increase its power in order to combat the evil that exists in our world, however I would not count myself as one of them." Said another, "The first responsibility of a government is to protect its citizens." A longer one says that riding in cars, talking on the phone, and flying in airplanes are privileges, not rights, and the world has a cancer that must be rooted out. "I'm not the enemy, and that will be figured out. But if I am not willing to let myself be put through the exam, then how can I expect the cancer to be found?" Chuck Muth, the editor, runs these in successive issues under the heading"The Enemy Within." He entitled a contrary one "One Reader Who Gets It'" that began, "Sir, if we give up our freedoms in defense of freedom, what do we have left? Basically we have the same thing as if we lost the war in the first place."

     Norman Singleton, who works on privacy rights for Congressman Ron Paul, posted a critique online of what he called "an emerging right-left alliance against the ability of law enforcement to conduct domestic surveillance of terrorists." He calls it "an unholy alliance" because it is not focused on stopping terrorists "but rather on restraining law enforcement which seeks to protect our safety. Privacy is fine, but at a time such as this, we must guard our security first.... Some so-called conservatives have long opposed allowing law enforcement to have encryption-busting powers. Evidently, the largesse of the computer industry and other special industry and other special interests can be very influential.... Give Attorney General Ashcroft all he requests, and more."

     Similarly, there have been calls for the deporting of all Arab immigrants, legally here or not, for face recognition technology matched to a computer data base of suspected persons in public places like airports, and for a national I.D. card. Tom Colatosti, president and CEO of Viisage Technology, Inc. (maker of face-recognition technology), and Larry Ellison, CEO of Oracle (who says he has the software for a national I.D. card) have lost no time in offering their software "free" to the U.S. government, an act which would of course lock in the market for future upgrades for their companies. Ellison's card would include a photograph and a digitized thumb print. Ron Paul's speech to the House called a national I.D. card "disastrous to our civil liberties" and pointed out that counterfeit-proof I.D.s could be voluntarily issued by airlines, only available to law enforcement "with probable cause or a warrant." One of the main objections to a national I.D. card, of course, is that what the government issues the government can take away, and the activities for which it is required would then be off-limits. Remember when various writers had their passports lifted so they couldn't travel abroad during the McCarthy era? It can't happen here?

     Another concern that surfaced in the early days of the crisis was a fear of encryption, because it can be used by conspirators. An implication that Phil Zimmermann, who invented the encryption method PGP, was both under fire for that invention and was "overwhelmed with feelings of guilt" as one article put it circulated so widely on the Internet that Zimmermann finally asked a friend to post a statement of his on the Cypherpunks list. Zimmermann said that he had been misrepresented in the published version of an interview that took place six days after the attack, and that PGP was "a tool for human rights around the world." He concluded that "strong cryptography does more good for a democratic society than harm, even if it can be used by terrorists." Supporters of encryption liken it to the possibility of using envelopes to mail letters rather than writing postcards, and as Zimmermann said, there was a long debate on whether strong cryptography should be restricted by the government in the '90s, which ended in the abandonment of calls for government controls. Nonetheless, two days after the World Trade Center attack, Senator Judd Gregg (R-New Hampshire) called for an international prohibition on encryption without "backdoors" that would allow government surveillance. All of these suggestions have not been followed up by legislation - President Bush himself came out against the idea of a national I.D. card.

     But a well-known libertarian writer, Cathy Young, came out in the early days with an op ed piece in the Boston Globe that supported a great deal of government encroachments on freedom, including the outlawing of encryption software and the government intercepting of email "as long as there is due process." Her most memorable line was "It is said that there are no atheists in foxholes; perhaps there are no true libertarians in time of terrorist attacks. Even in the Declaration of Independence, the right to liberty is preceded by the right to life." Reason magazine (of which Young is a contributing editor) put this piece on its website, and received so much criticism for it on one free speech list where it was posted that Reason's editor, Nick Gillespie, had to post a response saying that he had the article on the website out of courtesy to a writer he admired, not because he agreed with it.

     I think I understand Cathy Young's reaction. ALF News readers may remember that some years ago she wrote an article for us about how she discovered feminism when she was a schoolgirl in the then Soviet Union. She is therefore no stranger to onerous government intervention, and she of all people is not supporting the long-term expansion of big government. Her reaction, we must remember, was early in the crisis. When the World Trade Center towers fell, I myself had the reaction that when my country, my city, my very neighborhood was facing such a crisis, who could be expected to care about something as abstract and removed as privacy and free speech? I have always cared about the Bill of Rights, but already people in my Manhattan building were asked to take into their homes out-of-town people who had poured in to relieve the overworked police and firemen. Some of them may have been members of the National Guard, but nobody quibbled about the possible quartering of troops in private homes in violation of the Third Amendment.

     We have to remember that there are no individual rights on a battlefield. People on a battlefield don't only treat the opposition, the guilty, as if they have no rights: they destroy any property, imprison any others whom they meet, and kill for reasons of suspicion or simple expediency. Sometimes, after people are captured, they are executed in the field. All to establish control for their side over a territory in which, if they are good guys like us, they will then establish the protection of rights. We all know this. Take the example of the hijacked plane that was crashed in Pennsylvania. We know that the men who rose up against the hijackers were heroes who deserve our heart felt admiration - but what did they do? They crashed a plane to avert an attack on a public building, killing all the other passengers, men, women, and children, in the process. That's a battlefield.

     Cathy Young is right, during an attack, you don't think of rights. But it doesn't do to then construct a logical reason to continue your non-rights-respecting behavior after the attack has subsided. One of my heroes, John Locke, unfortunately did just this. He defended American slavery by saying that in a just war, you could kill those you were fighting against. But if you can kill them, he said, surely the lesser evil of taking them prisoner - enslaving them -is also included as permissible. Both actions in effect take away a person's future, but some existence is better than death.

     For many of us (particularly, I think, in New York City), the end of the attack didn't seem like the end. Any minute, something else could happen. We still felt as if on a battlefield, and didn't want to let our guard down.

     That's an understandable, personal, emotional reaction. But it does not have a place in government policy. We all, especially libertarians, know that government ratchets up its powers in time of war and national emergency and it's very hard to make those powers go away. The bill drafted by the Bush Administration, first called the Mobilization Against Terrorism Act (MATA) and later simply the Anti-Terrorism Act (ATA) among other things permitted indefinite detention of immigrants, strengthened wiretapping and email eavesdropping laws (including lessening restrictions on the use of the FBI Carnivore and Echelon programs) and defined computer hacking as an act of terrorism punished by life imprisonment. It has been superseded in the House by the so-called "Patriot" compromise bill passed by the Judiciary Committee over the joint protest of Robert Barr (R-Georgia) and Maxine Waters (D-California), which included a two-year sunset provision, to the dismay of Attorney General Ashcroft, and only allowed a seven-day detention of suspected terrorist immigrants without charges. By Friday, October 5, the Senate had its own bill, which, according to the ACLU allowed for the indefinite detention of non-citizens "even if they have successfully challenged a government effort to deport them." This version, the ACLU said, was even worse than the House bill, because most of the expansion of government powers in the bill "would apply not just to surveillance of terrorists [which term is very loosely defined to possibly include protesters] but instead to all surveillance in the United States."

     Perhaps one of the most alarming statements that has come up from a number of officials in their interviews in the media is "This is a different kind of war. It will be more like the War on Drugs." Those of us who have paid attention to that unhappy exercise of federal power, with its overriding of several state propositions decriminalizing the use of marijuana for medical reasons and its seizing of houses, boats, and cars under forfeiture laws because a distant relative was suspected of smoking a joint therein, find the prospect of another such unsuccessful "war" going on in this country for years - with its accompanying racial profiling - deeply disturbing. Indeed, in one of his press conferences in September Attorney General Ashcroft said that one of the powers he was seeking was "additional tools to collect intelligence on terrorists, including...the ability to forfeit terrorist assets."

     The proliferation of American flags, the sight of the members of Congress suddenly bursting into the strains of "God Bless America, "bear witness to a love of country that most of us share. But what does that mean? President Truman once said that what really makes the United States unique is that our office holders swear to protect, not a ruler, or even the flag, but a piece of paper - the Constitution of the United States. And the Constitution is a document that sets out the powers that the government may have - limited by the rights of individuals.

     At the moment of war or disaster, we do what we must to mobilize for emergency. But once the emergency is past, the Constitution must be respected. Supreme Court Justice Robert H. Jackson once wrote, "A military order, however unconstitutional, is not apt to last longer than the military emergency. But once a judicial opinion rationalizes such an order," that "principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." He wrote those words about a wartime decision; it was in his dissenting opinion in the Korematsucase about the internment of Japanese-Americans during World War II.

     The American people have repudiated that particular loaded gun, years after the fact. It remains to be seen what the Congress will do in the thick of things about other plausible claims of urgent needs today. This is a time to remember the slogan that editor Chuck Muth of GOP News and Views has taken to running these days, "Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety." Muth seems to enjoy adding the byline, "Right-wing extremist Benjamin Franklin."

Letters to the Editor

     On September 12, ALF received the following e-mail:

     Hello, I'm French and I live in Nantes near the Atlantic Ocean. Five months ago I visited New York with my wife, for the first time. I liked the city and its inhabitants. I feel sorry for what happened. Thus, I have picked up your email by chance to send a message of encouragements and sympathy. Cheer up. We are with you. Christian.

I found "Donald's Smarter Sister" a fascinating article -almost impossible for me to imagine. The will and commitment it took- or the reverse, a life with no sense of any rooted identity.

Eugene Schwartz

Malden on Hudson, NY