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The old saying is that a conservative is a liberal who has been mugged. Respecting civil liberties is far easier when you’re not afraid. Denouncing racism is far easier when you have no reason to understand it. I learned those lessons painfully, two decades ago, when I was raped by a black man in the parking lot of my apartment building in Boston’s Back Bay. Growing up in Boston, watching the turmoil surrounding school integration, I prided myself on not being a racist, prided myself on being a liberal, a civil libertarian. My favorite course in college was constitutional law. It was on the eve of my graduation, the summer before I started law school, that a man held an ice pick to my throat and told me to push over and shut up, or he’d kill me. I was lucky. I survived. But that is not how I felt in the weeks, and months, and years afterward. I felt terrified. When my college roommate’s brother came over to greet me at graduation, I nearly jumped out of my skin. When the owner of the adjoining building posted an off-duty Boston police officer in the parking lot to stop all black men, I felt safer. When I started law school in the fall, I moved into a dorm. My room was tiny, but I felt safer. On Sept. 11, America was mugged, and in the days and months since, leading liberals have begun to sound more and more like the conservatives they have so long criticized. “In this autumn of anger,” columnist Jonathan Alter wrote in Newsweek, “even a liberal can find his thoughts turning to … torture.” “I was a knee-jerk opponent of ID cards,” Harvard Law Professor Alan Dershowitz told Business Week. “Now I’ve had to rethink the whole thing.” And these are the leading liberals. Public opinion polls taken in the wake of Sept. 11 have found majorities in favor of almost any form of technological surveillance that might make it easier for law enforcement to track terrorists — and citizens. That includes facial recognition technology, closer monitoring of banking and credit card transactions and expanded camera surveillance of streets and public places, even monitoring of e-mail, cell phones and Internet chat rooms. In Congress, notwithstanding the improbable alliance of civil libertarians on the left and foes of big government on the right that has managed to blunt prior efforts to increase police surveillance, legislation was enacted earlier this fall that expands government authority to detain immigrants without bringing charges, redefines those groups that can be targeted for enhanced surveillance and criminal penalties, and expands the rights of government officials to eavesdrop even on conversations between attorneys and their clients. “They’re after Arab lawyers,” one leading criminal defense lawyer tells me. Why? Why not? In the current climate, will anyone say no? At this writing, the status of detainees remains unclear, with some administration officials saying that the overwhelming majority have been released (Does that mean there was no reason to detain them in the first instance? How would we know?), and with U.S. Department of Justice officials declining to provide exact numbers. But does anyone care? For a nation of immigrants, and their children and grandchildren, our willingness to turn our collective backs on those being held while we focus on the anthrax scare is evidence of the power of fear. History amply demonstrates the impact of fear on freedom. One need only reread the famous First Amendment decisions of the last century to be reminded that it was the fear of communism that produced much of the rhetoric that we continue to quote. In Abrams v. United States, decided in 1919, a group of Russian immigrants were convicted of conspiracy and incitement and sentenced to 20 years in prison for distributing leaflets in New York criticizing the president and calling on workers to unite. It was, after all, only two years after the Russian revolution. In the wake of World War I, the U.S. Supreme Court upheld mass deportations of aliens, and famous cases such as Gitlow v. New York (1925) and Whitney v. California (1927) held that states had the power to punish even those whose only crime was to support an admittedly “moderate resolution” that proposed the achievement of Communist Labor Party goals through traditional political processes. Following the internments of Japanese Americans during World War II, again upheld by the Supreme Court, the Cold War ushered in a period of renewed anticommunist fervor. In the Senate, Joseph McCarthy prevailed, destroying lives with his blacklist, while, in the Supreme Court, government lawyers successfully argued that the mere formation of a conspiracy — even without its actual execution — was enough to constitute a crime, and that the “gravity of the evil” outweighed the improbability of success. Justice Robert Jackson, concurring with the result in Dennis v. United States (1951), explained that a stricter test would require the court to “appraise imponderables, including international and national phenomena which battle the best informed foreign offices and our most experienced politicians.” It was not until six years later, after McCarthy had died, some of the fervor had abated, and the federal government had begun prosecuting lower-echelon communists, that the Supreme Court reconsidered its doctrine enough to reverse the convictions of 14 defendants essentially convicted for the crime of association. “When a nation is at war,” Justice Oliver Wendell Holmes wrote, “many things that might be said in time of peace are such a hindrance to its effort that no Court could regard them as protected by any constitutional right.” Americans everywhere are afraid. In Hollywood, studios search under cars; in New York, evacuations have become routine; in airports, no one complains when they are singled out for secondary screening; mail carriers wear gloves and masks; crop dusters are suspect; any truck could hold a bomb. Can anyone really feel safe? But there is another danger, far more certain than terrorism. It is the danger that we will end up neither safe nor free. Looking back, the communist cases seem almost laughable to my students, and the constitutionality of internment almost inexplicable. Until Sept. 11, it was easy to laugh at the paranoia of an earlier time. The real challenge to civil liberties is not the question of whether Nazis can march in Skokie 50 years after World War II, but whether Arabs will be allowed to congregate freely, or fly airplanes, or communicate with each other, in the wake of Sept. 11. I understand why Jonathan Alter would think about torture, and why Alan Dershowitz would reconsider national ID cards. It’s what I did, when I was raped, and crossed the street to avoid black men and shrugged off random stops and searches in my own backyard. I wanted to be safe. But it doesn’t really work. The lesson I learned, staying inside afraid, crossing streets, forgetting my values, was the lesson that this country has learned so many times and forgets when its citizens are afraid. It is right that we should take reasonable precautions to protect ourselves and to enforce the law. I collect parking tickets when I can’t find a safe place to park, and I have for 20 years. But I don’t stay home, and I don’t jump when a black man approaches me. It is wrong to sacrifice our freedom, to embrace torture, to turn this into a country that fails to treat immigrants with the dignity we would wish for our parents and grandparents. It is precisely when we are afraid that it is most important to remember who we are, what we stand for, what values we hold most dear. This is such a time for America, and especially for those of us who call ourselves liberals. Susan Estrich is a professor at the University of Southern California Law School. E-mail: [email protected]

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