Maryland
Bar Bulletin
Publications :
Bar Bulletin
Editor: W.
Patrick Tandy
March, 2004
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MSBA
Public Awareness Committee Hosts
Terrorism and Civil Liberties Forum
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By
Patrick Tandy
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The MSBA Public Awareness
Committee (PAC) sponsored a public law forum to address
“Terrorism and Civil Liberties in Our Post-9/11 World” February
19 at the University of Maryland School of Law in Baltimore. The program was
the latest installment in the PAC’s continuing series of forums designed
to bring spirited and informative discussion on timely matters to the public.
A sizable audience that
included judges, attorneys and law students filled the school’s wood-paneled
Krongard Room as Michael Greenberger, a Professor of Law at the University
of Maryland School of Law and Director of the University of Maryland Center
for Health and Homeland Security, moderated the discourse of guest speakers
Harvey Eisenberg, Assistant U.S. Attorney with the U.S. Attorney’s
Office for the District of Maryland, and David Rocah, Staff Attorney for
the American Civil Liberties Union of Maryland.
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What Price Freedom?
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David Rocah,
Staff Attorney for the ACLU of Maryland (right), and Harvey Eisenberg,
Assistant U.S. Attorney for the U.S. Attorney's Office for the District
of Maryland, Engage in lively debate.
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Greenberger opened the
forum by directing his first question to Eisenberg. “Is it right to
say that this [anti-terrorism investigation] is all focused on immigrants,
people of color, or are you in your investigatory processes keeping an open
mind wherever they take you?” Greenberger asked, specifically citing
the 1995 bombing of the Federal Building in Oklahoma City (“probably
the second-worst terrorist act that was ever committed in the United States”)
for which American militiaman Timothy McVeigh was convicted and executed.
“I would be remiss
if I were to direct the FBI or any other member of the law enforcement or
the intelligence community to focus on any one individual,” Eisenberg
replied. “It would be a mistake pragmatically for me to tell someone
to focus only on someone of a certain color or ethnic persuasion or anything
else. If you’re not acting on something more than just the color of
one’s skin, you are going to miss the next terrorist. And that is something
that is not only preached but accepted by the law enforcement community.”
“Having said all
that,” Eisenberg continued, “if my enemy comes from a certain
area of the world and if my vulnerabilities [and those of] my country or
my citizens is in a certain area, would you not expect me and not demand
that I look in certain areas? Isn’t that where I’m going to find
most of the evidence? Not ignoring the rest of the world, but when
we question people that come from Yemen, [we are] more likely to find out
information about al Qaeda if [we] go to Yemen or Afghanistan – or
name a few other countries, without condemning all the citizens of those
countries – but is it not more likely you would find evidence about
our enemies’ actions, about sleepers, from people that live and breathe
in that community? It makes only perfect sense.”
But Rocah painted a considerably
more Kafkaesque portrait of America’s “War on Terror.”
“There are things that have been done since September by our government
that pose significant threats to freedom and democracy,” he said. Chief
among those threats was what Rocah referred to as “executive autonomy
or the creation of a parallel justice system to deal with the threat of terrorism” which
operates outside of our nation’s established rules and procedures. “The
government’s arrogation to itself of the power to unilaterally label
somebody an enemy combatant and to then detain them indefinitely without access
to counsel, without any judicial review and without charging them with any
crime,” he continued, “I would put that as one of the most
potentially far-reaching things that our government has done – and one
of the scariest.”
“All of us in this
room, myself obviously included, are scared and worried about further terrorist
attacks and obviously want our government to do everything that is feasible,
reasonable and constitutional in order to ensure that that doesn’t
happen again,” Rocah added. “But this is obviously also not the
first time that our country has felt scared, and how we respond to those
situations says a lot about what type of society we are.”
Both panelists spoke at
times in personal as well as professional capacities on issues ranging from
the USA PATRIOT Act (and its sequel, the “Domestic Security Enhancement
Act of 2003,” better known as Patriot Act II) to airport security inspections
and checkpoints. But if Eisenberg and Rocah found common ground anywhere,
it was in the public forum itself.
“We need to have
public discourse about this,” said Eisenberg, “and we need to
do it in a rational, nonpolitical, straightforward way so that we as voters
and ultimately as members of this democracy express ourselves in an educated
way.”
“I agree that the
debate between security and liberty is an important debate to have,” Rocah
said. “On most questions, I think reasonable minds can disagree. And
I think the most important thing is to have that debate and to have people
thinking long and hard about those issues.”
The series of public law
forums was created as a means of providing the public with balanced and informative
discussions of topical issues; past PAC forums have focused on such topics
as cybersafety and the death penalty.
“We were hoping
that people would have a much better understanding of what the issues are
involving 9/11 and civil liberties because these issues are so very important
and they affect us more and more in every way in our lives,”
said PAC Co-Chair Robert Anbinder.
