The War Comes Back Home

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THE ENFORCER: The Attorney General insists the government's new powers against terror are applied with care

Standing on the deck of the U.S.S. Abraham Lincoln last week, George W. Bush declared the Iraq war largely over. It was a majestic occasion even if you knew that its majesty had been carefully stage-managed. Bush, who had just the right windswept-but-presidential look, had apparently even taken the controls for part of the flight from San Diego to the Lincoln. The White House could hardly have done more to ensure a big audience; the speech interrupted that hallowed American tradition called Friends. The central purpose of all the pageantry was to soothe us: We're winning the war on terrorism, the worst is over, let's get back to work.

But on the very day that Bush was declaring provisional victory over Baghdad, a notable skirmish in another war was quietly under way in Washington. This is a war without daily briefings by self-assured Bush men and women. It's the war over how to make America safer without turning it into a police state — how to mediate the difficult conflict between security and liberty. And this war is far from over.

On Thursday, Democrats on the Senate Intelligence Committee defeated a White House attempt to give the CIA and the Pentagon new and unusual authority to investigate U.S. citizens. It would have been the first time in U.S. history that these two institutions were openly authorized to probe into the lives of Americans. In a closed-door meeting of the Intelligence Committee, Democrats rejected a measure that would have allowed the CIA and the Pentagon to issue "national security letters" requiring Internet providers, credit-card companies and other institutions to cough up the personal and financial records of their customers. Says a U.S. intelligence official: "Periodically since 9/11, the folks on the Hill have asked, 'Geez, what kind of authorities would make your job easier?' And so that proposal was proposed."

The war on terrorism may be launching a legal revolution in America. The changes pose these questions: How necessary are some of the reforms? Have John Ashcroft and the Justice Department unraveled constitutional protections in trying to ensure our safety? "There is a significant civil-liberties price to be paid as we adopt various national-security initiatives," says Mary Jo White, a former U.S. Attorney in the Southern District of New York, whose office pursued some of the biggest terrorism cases of the 1990s. "For the most part, I think that price is necessary. But what I worry about is government officials who find the answers too easy in this arena."

None of the answers are simple. Who wouldn't have authorized an extra wiretap or a longer detention if it could have prevented 9/11, but who knows how far to go? As the demands of security bump up against the safeguards of personal liberty, clashes have been breaking out around the country over where to draw the line. Librarians are alerting visitors that their Internet surfing or book borrowing may be monitored by the government. Nearly 100 towns and counties, plus the state of Hawaii, have passed resolutions condemning the USA Patriot Act, the post-9/11 law that greatly expanded federal powers to conduct the war on terrorism.

The town of Arcata (pop. 16,000), Calif., has gone further, passing an ordinance that requires city officials to decline to assist in investigations carried out under the powers of the act. David Meserve, the city council member who drafted the ordinance, says it was a pre-emptive strike in case the feds, using the Patriot Act as their legal authority, ever ask local police to serve a search warrant or order town record keepers to hand over tax records. "My oath of office is to uphold the Constitution," says Meserve. "The Patriot Act is unconstitutional."

Not so fast, says Assistant Attorney General Viet Dinh, who had a large part in shaping the USA Patriot Act. "Security is the means by which we achieve our fundamental freedoms." Dinh rejects the idea that the Justice Department is doing a balancing act because, he says, the department is making sure that no civil liberties are violated. "It is especially in this war, where our enemies are attacking the very foundations of our liberties," he says, "that we must be particularly vigilant about protecting those liberties."

Here are some of the questions that are testing that vigilance:

--WHAT RIGHTS FOR ALIENS? In the days right after 9/11, the Immigration and Naturalization Service rounded up about 750 foreign nationals and detained them on immigration charges. Most have been released, but more than 100 remain in federal custody. On March 1, immigration control was transferred to the new Department of Homeland Security. One of the department's first steps was to announce that henceforth anyone arriving from one of 33 mostly Muslim nations and seeking asylum in the U.S. would be automatically jailed while the asylum application was pending. (Asylum is a form of protection that allows foreigners to remain here, provided they meet the definition of a refugee.) The government could point to a few terrorists who had entered the U.S. under the guise of asylum seeker, notably Abdel Rahman, now in prison for plotting attacks on the United Nations and other targets. But asylum applications usually take six months or more to process, and incarceration is a fate previously reserved for applicants who might be a risk to the community or might disappear.

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