Statement of U.S. Senator Russ Feingold
Chairman, Senate Committee on the Judiciary Subcommittee on the
Constitution, Federalism & Property Rights
Hearing on "Protecting Constitutional Freedoms in the
Face of Terrorism"
October 3, 2001
I’d like to welcome all of you to this hearing of the Subcommittee
on the
Constitution on "Protecting Constitutional Freedoms in the
Face of Terrorism." We have a very distinguished panel of witnesses here
this morning, and I very much appreciate their willingness to speak with us
especially on such short notice.
Almost as soon as the attacks of September 11 ended, public
discussion turned to two issues – how the United States will respond to these
terrorist acts, and how we can protect ourselves against future attacks. And
almost immediately, discussion of that second issue raised the question of how
our efforts to prevent terrorism will affect the civil liberties enjoyed by all
Americans as part of our constitutional birthright.
I was greatly encouraged by the words of Senator George Allen, who
represents one of the states struck by terrorism, on the day after the attacks.
He said on that day:
"We must make sure that as we learn the facts, we do not
allow these attacks to succeed in tempting us in any way to diminish what makes
us a great nation. And what makes us a great nation is that this is a country
that understands that people have God-given rights and liberties. And we
cannot--in our efforts to bring justice--diminish those liberties."
I agree with Senator Allen, and I believe that one of the most
important duties of this Congress in responding to the terrible events of
September 11 is to protect civil liberties, which derive, of course, from our
Constitution. Now that is not to say that no measures to strengthen law
enforcement can be enacted. There are many things we can do to assist the
Department of Justice in its mission to catch those who helped the terrorists
and prevent future attacks. We can and we will give the FBI new and better tools.
But we must also make sure that the new tools don’t become instruments of
abuse.
There is no doubt that if we lived in a police state, it would be
easier to catch terrorists. If we lived in a country where the police were
allowed to search your home at any time for any reason; if we lived in a
country where the government is entitled to open your mail, eavesdrop on your
phone conversations, or intercept your email communications; if we lived in a
country where people could be held in jail indefinitely based on what they
write or think, or based on mere suspicion that they are up to no good, the
government would probably discover and arrest more terrorists or would be
terrorists, just as it would find more lawbreakers generally. But I think we
can all agree that wouldn’t be a country in which we could want to live, and it
wouldn’t be a country for which we could, in good conscience, ask our young
people to fight and die. In short, that country wouldn’t be America.
In a recent L.A. Times article, Professor Erwin Chemerinsky, a
distinguished law professor at the University of Southern California, put the
challenge before us squarely:
"Some loss of freedom may be necessary to ensure security;
but not every sacrifice of liberty is warranted. For example, people accept
more thorough searches at airports even though it means a loss of privacy. But
strip searches and body cavity searches would be clearly unacceptable. The
central question must be what rights need to be sacrificed, under what
circumstances, and for what gain."
I think it is important to remember that the Constitution was
written in 1789 by men who had recently won the Revolutionary War. They did not
live in comfortable and easy times of hypothetical enemies. They wrote the
Constitution and the Bill of Rights to protect individual liberties in times of
war as well as in times of peace.
There have been periods in our nation’s history when civil
liberties have taken a back seat to what appeared at the time to be the
legitimate exigencies of war. Our national consciousness still bears the stain
and the scars of those events: The Alien and Sedition Acts, the suspension of
habeas corpus during the Civil War, the internment of Japanese-Americans during
World War II and the injustices perpetrated against German-Americans and
Italian-Americans, the blacklisting of supposed communist sympathizers during
the McCarthy era, and the surveillance and harassment of antiwar protesters,
including Dr. Martin Luther King, Jr., during the Vietnam War. We must not allow
this piece of our past to become prologue.
Preserving our freedom is the reason we are now engaged in this
new war on terrorism. We will lose that war without a shot being fired if we
sacrifice the liberties of the American people in the belief that by doing so
we will stop the terrorists.
That is why this exercise of considering the Administration’s
proposed legislation and fine tuning it to minimize the infringement of civil
liberties is so necessary and so important. And this is a job that only the
Congress can do. We cannot simply rely on the Supreme Court to protect us from
laws that sacrifice our freedoms. We took an oath to support and defend the
Constitution of the United States. I hope our witnesses today will assist us in
our duty to be true to that oath.
END
S.1356, Wartime Treatment
of European Americans and Refugees Study Act (Introduced in the Senate)