Lawyers: The first line of defense against fear

Issue July 2004 By Richard C. Van Nostrand

Fear. Fear is a pervasive aspect of our society. Since the events of 9/11, issues surrounding fear, terror and our personal and national security have become nightly news as well as the foundation for a new national policy. TV shows with fear-based plot features have proliferated. This course will take an interdisciplinary approach to the understanding of fear as a primary emotion and as an influence on our society.

- Lafayette College Freshman Course Catalog, Fall 2004

One of the most famous quotes in history comes from President Franklin D. Roosevelt in his 1933 inaugural address. In the midst of the Great Depression, Roosevelt uttered his famous statement, "the only thing we have to fear is fear itself." This statement was made with noble purpose indeed, to bolster the spirits of the American population in the face of an economic calamity that had gripped the nation for several years. In the face of that persistent and very real threat to the American way of life, we had every right to be fearful. Roosevelt's words were a positive effort to lead this country out of one of its darkest hours.

Seventy years later, we live in times that are fearful for a very different reason. With the horror of the Sept. 11 attacks, our country was pulled into a fearful aspect of the international world in which most other nations and their citizens have been living for decades. Terrorist tactics, including car and suicide bombings, shocking murders and the senseless killing of innocents, are now daily topics of our national dialogue. The frightening world where random killings occur is no longer someone else's problem.

As a nation, we have responded in many appropriate ways to the threat of terrorism. Heightened security at airports, increased funding for international intelligence efforts, improved interaction between intelligence communities and improved communication links between law enforcement agencies were measured and meaningful reactions. Most of us have been willing to sacrifice our convenience if it made us safer. In the wake of Sept. 11, some also have been willing to forego even more important rights and place trust in our government that it will impinge upon those rights only to the minimum extent necessary to protect ourselves against the terrorist threat.

There are others, however, who would take advantage of the fear that terrorism breeds; they would progressively and permanently alter the fabric of our society, diminishing the rights, freedoms and liberties that are the core values of our America. In the name of defense against this nearly invisible enemy, they would deprive us of the fresh air that keeps our democratic traditions vibrant. This chilling of our free and unfettered public discourse and the basic freedoms essential to that discourse is far too high a price to pay.

In the short period that I have been president of this association, there have been no shortage of examples of overreaction. When originally passed in the wake of Sept. 11, the USA PATRIOT Act appropriately contained a sunset provision. With that sunset approaching in September of last year, U.S. Attorney General John Ashcroft, with very visible support from President George W. Bush, took to the road. On a barnstorming tour, Ashcroft widely and loudly urged support for the repeal of the PATRIOT Act sunset provision.

Ashcroft also advocated for the passage of the Domestic Security Enhancement Act (dubbed "PATRIOT Act 2"), proposed federal legislation that would further expand the government's investigatory powers while simultaneously reducing the checks and balances that would otherwise preserve our rights. As one example from PATRIOT Act 2, the ability of law enforcement officials to find out who we are and what we are reading by randomly obtaining library records without any basis for suspicion would be permitted in secret.

The logical sequence of ensuing events is not hard to imagine: a person is identified as having borrowed from the public library a book on terrorist activity or perhaps merely the teachings of Islam. Rather than this being viewed as a means to a better understanding of the important issues of the day - things essential to freedom of thought and freedom of expression - it is viewed as indicia of a potential for terrorist activity. That individual is then placed on a watch list, and his freedom of thought and freedom of expression becomes a trigger for further surveillance and potential deprivation of rights.

Aside from the effect on the individual so identified, it creates a chilling effect on others who have no predilection for terrorist activity. As we become fearful that what we read and think will be examined, analyzed and possibly perceived as a cause for suspicion, we artificially close our mind to other thoughts and other ideas. As we close our minds, our fear of others who may think and express those different thoughts is heightened. Consequently, we become increasingly willing to look the other way when those individuals' rights are further diminished. The end product being what was once an appropriate fear following a terrible event has been manipulated to breed mistrust and suspicion, heading us collectively, if not individually, far from the ideal of "one nation, indivisible, with liberty and justice for all."

The manipulation of fear is evident locally. The MBTA recently announced its security force would begin randomly stopping and searching transit riders to combat potential terrorist activity. The MBTA reports that more than 650,000 people board the various subway lines daily. News reports did not indicate the magnitude of the random stops and searches, but it is doubtful that more than a few hundred will be made per day. Will the random stop and search of significantly less than one-tenth of one percent of MBTA passengers prevent a terrorist attack? Are we willing to embrace the intrusion into the lives of so many innocent citizens and the intimidation that accompanies it in the face of such a remote possibility?

More importantly, who will be randomly stopped and have their bags and persons searched? Some of our better-known MBTA riders have been Michael Dukakis and Hiller Zobel. I also occasionally frequent the subway in my travels about Boston and Cambridge and suspect that neither former Gov. Dukakis, retired Judge Zobel nor me are likely to be the targets of the MBTA's random stops. Instead, it doesn't take much of an imagination to conclude that the likely targets will be the Guatemalan immigrant barrista who works at the Starbucks behind Quincy Market or the Middle Eastern college student on his way to Boston University.

In Worcester, another troubling example occurred in mid-June. Local environmentalists were attempting to raise funds for a jailed colleague via a movie showing at a private art studio. Utilizing the expansive definition of terrorism in the PATRIOT Act, the FBI issued a national alert erroneously targeting the environmentalists as possible terrorists. When the innocent activists attempted to meet with reporters in Elm Park to comment on the erroneous alert and announce that the film showing would be moved to Clark University, they noticed a woman wearing jeans and a pink tank top photographing them. The woman later identified herself as a plain clothes Worcester police detective assigned to photograph the participants. Three police cruisers also staked out the small meeting. Again, is the unnerving effect of such a show of police presence, both visible and undercover, a price we are willing to pay for the extremely remote chance that we might unearth and stop true terrorists?

Earlier this year, I revived the MBA task force that had analyzed the governmental response to the Sept. 11 attacks two years ago. The new mandate for the task force was to assess the current landscape and determine whether the MBA should take any action in this area.

At our House of Delegates meeting in May, the Task Force recommended that the MBA undertake efforts to promote awareness at the local level on issues regarding the protection of civil rights and civil liberties and the effect of the PATRIOT Act. Specifically, the task force recommended the adoption of a proposed resolution to present to local municipalities. The model resolution calls for: (1) continued commitment to civil rights and civil liberties, (2) rejection of racial profiling, (3) encouragement of due process by federal officials and (4) a request to our congressional delegation that, with respect to the PATRIOT Act, they closely scrutinize actions taken to implement it on the one hand and work for repeal of portions of it on the other.

The MBA House unanimously approved that resolution. Many communities and several states have adopted similar resolutions and we hope we can grow that number here. Hopefully, this outcry will send a clear message to Congress and the president that any response to terrorism that scales back civil rights and civil liberties must be measured and absolutely necessary.

As lawyers, we are the first line of defense and must be vigilant. Our license to practice law does not give us immunity from the fear that we all felt in the wake of Sept. 11. Our license to practice law, however, hopefully represents a deeper appreciation for just how important our civil rights and civil liberties are to our way of life and how much we will all lose if we close our eyes to overreaction. Most importantly, our legal training, experience and ability to inform and persuade provide us with the tools to translate our vigilance into a meaningful counterbalance. In the words of Marianne Williamson, "As we are liberated from our own fear, our presence automatically liberates others."