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Philadelphia solo practitioner Jeffrey Lindy doesn’t mind that he isn’t allowed to walk through the Mellon Bank building at 17th and Market to get his cup of coffee. The inconvenience of the tighter security, he said, is worth it if the building manager and tenants feel more secure. But he and other local legal experts want to proceed with caution when it comes to implementing new laws that might decrease terrorist attacks and impinge on civil liberties. In America’s search for security in the wake of last week’s terrorist attacks, many proposals have been put on the table. They range from the simple, elimination of coolers, backpacks and large bags at baseball stadiums, to the extreme, closely monitoring Arab-looking individuals — American citizens or not. “In mourning and anger there are a whole range of reactions, and most of us are in some sort of daze. In the midst there is the question ‘What can I do?’ You can give blood, money and your civil liberties,” said David Kairys, James E. Beasley Professor of Law at Temple University and of counsel at Kairys Rudovsky Epstein Messing & Rau. Traditionally, America has reacted by clamping down on civil liberties in the wake of terrorism. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act after the Oklahoma City bombing. It authorizes the president to withhold financial aid from countries that aid terrorist states and to use “all necessary means” to destroy the international terrorist infrastructure. Two provisions of the act raised civil liberties concerns. The first authorized the deportation of aliens based on secret evidence. Another criminalized giving material support to any group designated a terrorist organization by the secretary of state. Experts said Americans should not be blind to the incursions the war on drugs has had. And America still bears the shame of the Japanese internment during World War II. “We ought to be very, very careful domestically, to balance between security and freedom. A lot of what went wrong was not that they didn’t have power to capture and prevent the terrorism. It was a breakdown in system,” said David Rudovsky, University of Pennsylvania law professor and partner in Kairys Rudovsky. “There may be a need for additional powers but they should make a case for that. We should be very slow to authorize encroachments on civil liberties.” Locally and nationwide, the concern is that broadening governmental powers in the name of security will undercut civil liberties and still not provide any deterrent on terrorism. “There is a price on freedom, and we have been willing to pay that price,” Alan Yatvin of Popper & Yatvin said. “Immigration will become stricter. Things are going to go slower at airports, and that will be part of the price we pay. “It is one thing to pay with inconvenience and another thing to pay with giving up the more significant liberties of privacy, free speech and association.” No more curbside check-in at airports. Longer lines to get on the plane. Random body and baggage searches at airports. Background checks to get on a plane. Cameras with face-recognition software. Monitoring of e-mail communications. Broader wire-tapping access. Tighter immigration. Increased surveillance of citizens. Individually, the changes might seem innocuous — mere inconveniences — but compiled they might impinge on free living, said Kairys. “Some actions might make us incrementally safer and are not a huge intrusion,” said Kairys. “But their sum total could be a huge intrusion and add up to a pretty different way of life.” He points to changes that affect the right to free association, privacy and speech that start simply, such as allowing monitoring of e-mail. The information gathered from such a measure, he said, would be so voluminous it would have little impact on controlling terrorism just as the system of screening international calls is. Kairys said the information then has the potential to be abused by targeting people based on their religion, ethnicity or ancestry. The value of civil liberties, he said, decreases when the government starts targeting certain people. “The moves that we are tempted to make are more random and discriminatory in focus, the wider we throw the net,” Kairys said. “Civil liberties don’t mean a whole lot unless we extend them to everyone.” Racial profiling is the biggest concern local lawyers have. Recent violent acts targeting Arab-Americans, Muslims or even people who look of Middle Eastern descent have taken place even without changes in law. According to studies conducted by Gallup since the attacks, nearly six in 10 Americans favor requiring people of Arab descent to undergo special, more intensive security checks when flying on American planes. The public is evenly divided about whether Arabs living in this country — including those who are U.S. citizens — should be required to carry special identification with them. Thirty-two percent of Americans think Arabs living in this country should be put under special surveillance as Japanese-Americans were following Pearl Harbor, but 62 percent said it would be a mistake to target a nationality group, according to the Newsweek poll. LASTING EFFECT “In the hours and days after the tragic attacks in New York and Washington our national leaders have been nearly unanimous in their insistence that the tragedies not be used to diminish liberty,” said Gregory T. Nojeim, associate director of the ACLU Washington National Office. “But at its very first opportunity, the Senate passed legislation that threatens privacy rights without receiving any public showing that it would make us any safer.” Added to the spending bill for the Commerce, Justice and State departments were expanded circumstances under which the government can force Internet service providers to give law enforcement agencies information about private e-mails. Legislation expanding the parameters within which a warrant for wire-tapping can be granted has also been proposed, as well as a measure for inserting a back door entry into encryption programs. Accountability is what lawyers would like to see. Before laws are passed, legal experts said lawmakers should demonstrate how these laws would help combat terrorism. Attorneys argue that counterintelligence agencies have such tools in place and that providing wider parameters for law enforcement and national intelligence agencies might be regretted. The laws are not temporary and are not applicable just to terrorists. “I think there is a need for more careful reflection,” said Rudovsky. “Two weeks from now they might not agree with some of the proposals. In the name of anti-terrorism, we do many things that have no impact on terrorism,” he said referring to the anti-terrorism act following the Oklahoma City bombing. “That law had nothing to do with terrorism,” said Rudovsky. “This incident has the possibility to be used for someone’s agenda. I think the burden continues to be on those that propose [the laws] to prove how these changes will help and have a debate.” Lindy said he is concerned that little attention is being paid to which law enforcement sectors the laws will effect. He said a division must be made between counterintelligence and criminal justice. The attacks, he said, have nothing to do with criminal justice. The new laws should relate to helping the CIA, National Security Agency and National Intelligence Service stifle terrorism, not give the FBI more power to spy on normal citizens. Yatvin said he hopes legislative leaders will be responsible enough to ensure the new laws balance civil rights and security — because he doubts it will come from another source. “There is virtually no one in America who doesn’t find this an awful thing,” he said. “There is virtually no constituency that wouldn’t want to prevent terrorism. It isn’t a matter of don’t do anything; it is that we need to go slow.”

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