Guard Our Rights

America's courts are telling Congress and the public to begin paying attention to the Justice Department, the war on terrorism and the challenge to civil liberties that clearly has emerged since Sept. 11.

In five separate rulings ?including the super-secret Foreign Intelligence Surveillance Court's recent opinion ?federal courts checked what they saw as the executive branch's curtailing of First, Fourth, Sixth and Eighth Amendment rights of both American citizens and foreigners detained in the war on terrorism.

The most recent ruling, by a three-judge panel of the Sixth U.S. Circuit Court of Appeals, rejected the Justice Department's arguments that the government could close deportation hearings for those arrested in connection with the war on terrorism. The government had further argued it could keep the very existence of these hearings secret on national security grounds. But the court rightly disagreed.

In earlier rulings, trial courts in Newark, N.J., and Washington, D.C., objected to executive branch actions in which the government was attempting to keep secret information on arrests and investigations related to the war on terrorism.

"Democracies die behind closed doors," Judge Damon J. Keith wrote in his unanimous appellate decision this week in Cincinnati. "The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully and accurately . . . " he continued. That decision is binding only in federal courts in the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee), but it likely will be cited in other cases as the government deals with those held in secret detention since Sept. 11.

Indeed, the nearly 12 months since Sept. 11 have been unusual times. The executive branch, through the White House, Pentagon and Justice Department, bears the major responsibility for protecting Americans from terrorist attacks, and Americans expect the executive branch to do its best toward that end.

All the courts that have ruled on civil liberties issues have prominently acknowledged this executive branch responsibility. Further, a poll released earlier this week by the Colonial Williamsburg Foundation as part of a first anniversary look at events after Sept. 11 shows that 49 percent of Americans are willing to curtail their basic freedoms to protect the country.

Also, 53 percent of Americans think the FBI should be given additional monitoring powers.

But a look around the world should tell all Americans that once freedoms are surrendered to governments, they are not always returned. Many of the safeguards put in place to establish a wall between information gathered in government surveillance activities and criminal prosecutions resulted from Nixon-era government excesses.

The U.S.A. Patriot Act gave the government more power to watch foreigners and Americans. But we would be wise to closely monitor how the executive branch uses this power. That is exactly what the Foreign Intelligence Surveillance Court was doing in its rare release of its findings concerning FBI excesses.