The threat of terrorism cannot be greater than the curse of tyranny

Issue January 2006

In December, we watched as congressional brinkmanship played itself out over the reauthorization of the Patriot Act. While the Senate, led by a bi-partisan group, refused to continue some of the most unpatriotic provisions of the act, the House advanced a version that did little to deal with the law’s excesses. The stalemate was temporarily resolved by a limited extension of the act.

I am proud that, while carefully analyzing the act after its hasty passage in 2001, the Massachusetts Bar Association did not succumb to public fear and overreaction to a perceived threat. We found many deficiencies in the act that compromised the individual rights of citizens and we called for revisions. Although some measures authorized by the Patriot Act provided our country with the potential for greater protections against terrorism, many increased the dangers that follow from the compromise of individual liberties.

December also revealed the Bush administration’s ongoing unconstitutional program of warrantless wiretaps and communication interceptions. The revelation was followed by an arrogant assertion by the President of the need for restriction of individual rights and liberties in the face of terrorism. This complete disrespect of the authority of the judiciary and the rule of law was undertaken with the inexcusable circumvention of the secret Foreign Intelligence Surveillance Court established to review and authorize these very measures. A court reported to have never denied a request for a warrant for surveillance.

Some improvements in international intelligence efforts, improved interaction between intelligence communities and improved communication links between law enforcement agencies were meaningful reactions. Extrajudicial fishing expeditions for personal information from businesses, hospitals and libraries, the inability to challenge gag orders, and “sneak-and-peek” searches and warrantless wiretaps are not.

There is no inherent conflict between national security and the preservation of liberty; our government can protect us without impairing our civil rights. As attorneys, we have the power and responsibility to reinforce that message, to educate the public and our government leaders. Let us continue to show courage and resolve in the protection of individual rights and respect for the rule of law.

Protection from terrorism cannot be had by the acceptance of tyranny in the United States of America. Our republic cannot survive without respect for the rule of law.