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Bad News For Civil Liberties

Whether it is military action or political resolve or the rule of law itself, dramatic times call for dramatic measures. That's why the dastardly attacks on Washington and New York may very well mean significant changes to some of our nation's most important laws and rules.

First, there is the nature of the war itself. Under the Constitution, only Congress may declare "war and grant letters of marque and reprisal." Short of an official declaration of war, the Congress may authorize and give consent to the President to use military force against those responsible for the attacks.

And under the War Powers Act, the federal statute passed in 1973, President Bush has 90 days following the commencement of hostilities by American troops to get Congress' consent. Congress certainly could loosen the strings it has tied to the implementation of the President's war powers and may choose to do so.

Then there is the issue of assassination as a military and political tool. Currently, there is an Executive Order in place (Order No. 12333) which states that "no person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination." Such an order can fairly easily be rescinded, however, and almost certainly will in these circumstances. The Constitution itself does not preclude such acts.

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On the home front, too, there may be important changes. First, the provisions of the Posse Comitatus Act may be rescinded or changed. Enacted by Congress in 1878 in the wake of the Civil War, the Act as now written makes it unlawful "to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by an Act of Congress."

Surely the exception to this rule may be applicable now and, surely, the military will soon be placed into position domestically to help enforce our current laws and many new ones.

What kinds of new ones? Well, for starters, the terrorist attack may destroy all efforts by Congress and state legislatures to ban racial profiling in this country. Indeed, racial profiling may very well become a state-sanctioned law enforcement activity in the weeks and months ahead.

In the wake of the attacks, it is hard to dispute that the terror attacks were conducted by men of Arab descent, and it is hard to argue against the proposition that there are good grounds, constitutional grounds, for using racial profiles to help law enforcement officials stop terrorism before it begins.

I can certainly imagine people around the country complaining about any such new paradigm. But I cannot imagine any judge right now, federal or otherwise, hindering the efforts of officials to undertake those efforts.

There likely will be others ways in which our liberties and freedoms take a hit from the events of the ast few days. Rules and laws which currently preclude or limit federal and state wiretapping and surveillance activities almost certainly will be changed in the days and weeks to come to permit more aggressive efforts.

Again, I imagine that some folks will object to such intrusions on our privacy rights. But, again, I cannot imagine federal or state courts refusing to give wide latitude to the Congress or other legislative bodies in empowering the intelligence community to listen more closely to those who would plan the next assault.

There also may be changes to the way law enforcement react once officials get a whiff of a plot to destroy. As the law now stands, cops may detain someone as a "material witness" or "subject" for only a relatively short period of time before the witness or subject must be either charged with a crime or released.

There are good reasons for these current rules. No one wants to allow the law enforcement community to be allowed to hold people for weeks or months at a time without charges being filed – that's the sort of stuff which happened in this country before the revolution of 1776 and which has happened in totalitarian states since then.

However, law enforcement officials may now be able to make the argument that they cannot secure our airports and our skies and our national treasures without being able to hold onto suspected terrorists, or their accomplices, a little longer to sort out the facts.

There has been a lot of talk over the past few days about the sacrifices Americans will be called upon to make in the weeks, months and years ahead.

Some of these sacrifices will be the ultimate one – American soldiers, sailors and airmen and women will almost certainly die in the fighting to come. Some of the sacrifices will be material ones – we all may be forced to change our standards of living to help in the cause. And some of the sacrifices will be more ephemeral but no less important.

Our laws will change as a result of the terror attacks, and not all of us will be delighted by the changes. But drastic times call for drastic measures and there won't be a whole lot anyone can do about it until this crisis passes. And even then we may never again enjoy the vast range of liberties we enjoyed until this week. That may be just another price of freedom.

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