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Editor: W. Patrick Tandy

March, 2004

 

MSBA Public Awareness Committee Hosts
Terrorism and Civil Liberties Forum

By Patrick Tandy


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.

What Price Freedom?

Eisenberg

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.

Rocah

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.

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Publications : Bar Bulletin: March, 2004

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