The presumption of innocence has gone to the dogs
Anti-terrorist buzz charges the political atmosphere like a mid-summer electrical storm. The terms “security,” “warfare” and “threat” have been wrenched from their colloquial hiatus and tossed about as in a cold war policy conference. Television news reporters speak as though they were ministers describing a plague out of revelations, and civil liberties organizations describe horrors as if awakening from a great nightmare.
Washington, at the height of panic, might be scarcely decipherable from the 1962 days of the Cuban missile crisis to an observer having waken from a prolonged coma, and a moderate terror seems to have nested with us indefinitely. Warnings issued by the administration are seasoned with a mixture of caution and alarm, and with every bio-crime, imagined and real, fear is sown in increasing quantity.
In this environment, Congress recently passed the anti-terrorism bill. The bill, which endows intelligence agencies with greater surveillance capabilities, including “roving wiretaps” capable of monitoring multiple phone and Internet lines at once, passed by an uncommon majority in both chambers. Furthermore, the bill includes a clause allowing authorities to detain non-citizens for up to seven days without formal charges. Other less controversial provisions included stiffening penalties for terrorist acts and money laundering provisions adopted by the Senate version.
The major difference in the House and Senate versions rests in the “sunset” clause in the House version that would require a renewal after five years. A final version reconciling both bills is now being discussed with the administration, which opposes a renewal clause. Senator Bob Grahm summarized the thrust of the legislation: “If there is a single goal of the intelligence components of this anti-terrorism bill,” he claimed, “it is to change the focus from responding to acts that have already occurred to preventing acts that threaten the lives of American citizens.”
In other words, the bill removes a presumption of innocence or trust, in place of one of guilt, or mistrust, for the sake of prevention. Following such a rationale, Congress has provided a legislative link in a major transition in the U.S. social contract between state and citizen.
Such a contract, as envisioned by political philosophers, is an agreement of sorts that exists within states and determines how a government treats its citizens. Military service, government programs, civil rights and liberties, taxes, and legality are all examples of obligations of citizen to state and vice versa.
The U.S. social contract has, for ages, involved an official presumption of innocence, or trust, to all citizens. This, of course, has been denied many groups throughout history, but has held as a political and legal principle.
Such a presumption is suffering a reversal, however, as evidenced by the legislation passed last Friday. Guilt and mistrust constitute the premise that must be proven misplaced by a sustained proof of innocence in conversations, e-mails, etc. It is unclear how many phone lines, Internet accounts and other interactions intelligence may be able to monitor. Perhaps intelligence will be cautious in applying their newly gained powers, perhaps not. That is irrelevant.
The legislation passed last Friday is a tragedy of principle as it officialized the practice of mistrust. Mistrust and presumed guilt have been justified as preventative measures and a necessary guarantee of security. Senator Orrin Hatch went so far as to say that had we passed the bill earlier, “we might have been able to interdict these terrorists.”
Such statements should be rejected on both lack of evidence and reason. In these times of fright and terror, we must remain sensible. I challenge Mr. Hatch, the administration and all 96 Senators who passed the anti-terrorism bill with no sunset clause to consider what type of nation we are hoping to preserve. We can never guarantee our complete security. The most we can do is formulate sensible and intelligent policies that are less likely to incense groups against us. I call upon the administration to accept the sunset clause and satisfy themselves with what has been passed so far.
A nation composed of the guilty would have little reason for self-defense.