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News Release

For immediate use

Nov. 1, 2004 -- No. 533

Threats to American liberties
concern law professor at UNC

By DAVID WILLIAMSON
UNC News Services

CHAPEL HILL— Long ago, Benjamin Franklin said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

That unsettling readiness to relinquish hard-fought-for freedoms in the face of possible danger that Franklin observed exists today and worries a distinguished University of North Carolina at Chapel Hill legal scholar and others across the United States.

"We have a long history, going back to the Alien and Sedition Acts of 1798, of jettisoning our civil liberties when our security seems threatened," wrote Daniel Pollitt, Kenan professor of law emeritus at the UNC School of Law. "We look back on each situation with remorse, but repeat the error when the next crisis comes along."

So it is with the Bush administration’s questionable legal and military responses to the terrorist attacks of Sept. 11, 2001, Pollitt said.

"And this too will pass. But can we park our hard-earned liberties on a shelf somewhere for the duration of a crisis and not expect them to be moth-eaten and crumbled around the edge when the crisis ends?" he asked. "The sound and the fury of the Bush war on terror will be for naught if in the end we find we have destroyed the very freedoms for which we fought."

Pollitt makes his remarks in a new book recently published by NewSouth Books and titled Where We Stand, subtitled Voices of Southern Dissent. He and 11 other respected lawyers and legal scholars, historians, activists and theologians from across the South contributed essays to the book, which New Orleans attorney Anthony Dunbar edited.

"This book celebrates some valued American principles: promoting the common good, hope for the future, political compromise, fairness to the minority, everybody pulling the same wagon," Dunbar wrote. "In the belief that these treasured ideals still matter, this book also condemns international bullying, unrestrained destruction of our natural environment, extreme -- and growing -- inequality in the means of living, the creation of a permanent underclass and mean-spirited politics."

Among the contributors is Gene Nichol, dean of the UNC School of Law, who wrote about the widening gap between haves and have-nots in America. Former President Jimmy Carter wrote the foreword.

"The contributors to this book and I are deeply concerned about the politics of our government and their profound impact, both at home and abroad," Carter wrote. "Despite our superpower status, we should not expect to impose our values on others by force of arms …. We should be the most generous nation in alleviating suffering and lead by example in every way that represents the finest aspects of the moral and ethical values that have shaped America’s history."

In his essay, Pollitt described ways the U.S. Constitution and civil liberties have suffered since 9/11.

One example turns on its ear the long-cherished notion and law that "every man’s home is his castle" and cannot be searched without a warrant. In the name of combating terrorism, police and other government agents now can legally enter anyone’s house without notice or warrant and keep the search secret.

Another example is the Foreign Intelligence Surveillance Act (FISA) Court, which acts in secret and does not require probable cause before issuing warrants, he said. Another is the requirement that bookstores and libraries reveal patron records to the FBI upon request and not inform -- under pain of prosecution -- anyone of the secret searches.

Although the courts have ruled that Americans have the right to travel almost anywhere, numerous citizens have found themselves prevented from flying for no good reason. Various Christian and peace advocacy groups and people with Arab-sounding names, for example, have been singled out and denied boarding when no evidence existed that they posed any security threat whatsoever. That included people protesting the war in Iraq.

Regarding troubling military tribunals, which have concerned both conservatives and liberals, Pollitt quoted the Supreme Court in Ex Parte Milligan. In overruling death sentences by a military commission, a majority of the court in 1867 held that the Constitution "is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all time, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

"Three hundred U.S. law professors opposed the military tribunal because it violates the separation of powers, does not comport with constitutional standards of due process and violates binding treaties," Pollitt said. Even conservative columnist William Safire wrote that "a panic-stricken attorney general" misadvised the president to replace "the American rule of law with military kangaroo courts."

"Officials chose Guantanamo as the site for a prison camp on the theory that it is technically not part of the United States, so constitutional protections would not apply," Pollitt wrote. Regarding captives there, "President Bush has declared…that the Geneva Convention does not apply…There is worldwide revulsion to our policy in Guantanamo, and Secretary of State Colin Powell advised the president of ‘growing complaints from the countries whose nationals are among the prisoners.’"

In the frenzy after 9/11, thousands of both legal and illegal immigrants were swept up in secrecy and mistreated to varying degrees just as thousands of alleged radicals were rounded up by the thousands after World War I by then Attorney General A. Mitchell Palmer and brutalized in local jails, he wrote.

"Today, we consider the Palmer raids illegal, unconstitutional, shameful," Pollitt said. "History will judge the Ashcroft raids no differently.

"At home, the President asserts a right to confine American citizens in military prisons – in solitary confinement with no access to counsel, friends or family. No other president has ever claimed such power."

During the Civil War, he said, N.C. Governor Zeb Vance withstood the pressure to lock people up without the right to be heard when he reacted to the roundup of able-bodied men of draft age who might -- or might not -- have been deserters.

"Vance wrote Confederacy president Jefferson Davis to go slow in suspending the writ of habeas corpus and threatened to recall North Carolina troops from the front lines to uphold the principles of ‘Anglo-Saxon liberty,’" Pollitt said. "The proudest boast of his governorship, he later wrote, was that the ‘laws were heard amidst the roar of the cannon.’"

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Note: Pollitt can be reached at (919) 962-4127 (w), 942-1277 (h) or dhpollit@email.unc.edu

School of Law Contact: Audrey Ward, (919) 962-4125
News Services Contact: David Williamson, (919) 962-8596