Since the Revolution, Americans have laid down their lives to secure and protect individual freedom and civil liberties. Prominent panelists explored the question of whether our civil liberties are being eroded in these times of terrorism and war in a recent "Conversations on Main Street," a joint project of Landmark on Main Street, the Port Washington Public Library, and the Dolphin Bookshop. Moderated by TV personality Larry Davidson, the panel included legal experts Elkan Abramowitz and Sol Wachtler, as well as Newsday editorial writer Alvin Bessent.

Sol Wachtler, former Chief Judge of the New York Court of Appeals, began by giving a historical context, going back to the case of Marbury vs. Madison, (Feb. 24, 1803), an 1803 landmark U.S. Supreme Court decision, the first instance in which the high court declared an act of Congress unconstitutional, thus establishing the doctrine of judicial review. He commented, "We like to say that we are a nation of laws, not of men. That's baloney. It is the men who have made the law what it is today." Wachtler pointed out that in time of war, "We are afraid, we diminish civil liberties and let the executive run the war." He cited the Alien and Sedition Acts (1798), passed in anticipation of war with France; the sentencing of Eugene Debs to prison for criticizing the government's prosecution of persons charged with violating the 1917 Espionage Act (World War I); and the internment of the Japanese during World War II, which took place under Franklin Delano Roosevelt, known as a civil libertarian. Alvin Bessent, who specializes in writing about civil liberties and the justice system, added, "Not only are civil liberties diminished, but the court steps back."

Elkan Abramowitz, Port Washington resident and prominent attorney, commented, "We are talking about separation of power. The executive branch has more power and influence when we are at war or threatened, but we still have a society where the judiciary can put the brakes on." He cited as an example the recent ruling of a federal court that José Padilla, a U.S. citizen held for nine month in military custody as an "enemy combatant" accused of plotting to build a "dirty bomb," must be allowed to meet with lawyers. Abramowitz reminded us, "The government is not just the executive branch; it is all three branches. Just because someone has a lawyer does not increase terrorism; it might, in fact, get more information with a lawyer to negotiate."

Larry Davidson posed the question of freedom of speech, asking, "Doesn't dissent suffer?" Wachtler responded, "It takes a very brave person to dissent when that is viewed as being against what this country stands for." He said that 25 percent of the people get their views from conservative talk show hosts, and that anyone who has an opposing view is branded a "liberal" and an "enemy of the state." Bessent asked, "What happened to dissent?" As an example, when Democrats challenged President George Bush's attempt to eliminate civil service protections for employees of the new Homeland Security Office, they were accused of "not being interested in the security of the United States."

Abramowitz said that, unlike the McCarthy era, there is no debate about the presence of a real threat. We do have a legal right, under the Geneva Convention, to identify and detain "enemy combatants." However, he asked, "Are we overreacting? Does this mean that every Muslim can be detained? Should we go into every mosque? That's where the Patriot Act comes in and where we have to be concerned about the civil liberties of those who have been detained. They should have the right to have a lawyer and to go to a judge."

All of the panelists expressed concern about the effects on civil liberties of the provisions of the newly passed Patriot Act. Abramowitz pointed out that it allows the FBI and other law enforcement bodies to, for example, ask a bookstore or library for a list of books a person has bought or borrowed, or a list of persons who have bought or borrowed a particular book without notifying that person. It allows for search of e-mails, phone taps and wiretaps without "probable cause" if there is an allegation of "terrorism." It also allows for "data mining," collecting a vast database of virtually all our personal information, including medical data and commercial and financial transactions. It relaxes requirements for warrants, which are granted in secret. It allows for a "sneak and peek" warrant, where one's premises can be searched without that person's knowing and without any effective oversight. (Congress receives a report that tells only how many secret warrants are issued annually.) Abramowitz said, "This is inconsistent with the values of this country. We do not want a total police state. Congress abdicated its responsibilities by allowing this act to pass without focus. Congress and the judiciary will have to step up to the plate." He added that he is particularly concerned that evidence gathered under this statute, with its relaxed requirements, can be used in criminal cases in this country, without the protection of the fourth amendment (freedom from unreasonable search and seizure). Wachtler commented, "We really have a reason to be afraid, but we have gone far enough." He asked rhetorically, "Will the courts meet the challenge?"

In response to Davidson's question, the panelists expressed no major objections to a national identity card, but were concerned about how it might be used. The panelists expressed opposition to racial or ethnic profiling, pointing out that it is not only an infringement of civil liberties, but it is ineffective as a security tool. Bessent told about Ray Kelly, currently the highly regarded Commissioner of the New York City Police Department, who, when head of Customs, eliminated racial profiling, calling it "lazy policing." Instead of paying attention to people who look a certain way, the customs officers looked at other, more relevant, clues. The result was a reduction in the number of people pulled out of line, and a dramatic increase in the quantity of contraband that was identified. Wachtler added, "It makes us feel better, but we should be mature enough to know that it does not make us safer."

Wachtler pointed out that the original intention of the Bill of Rights was to protect the prisoner in the dock. He said, "They knew that the easiest way to persecute your enemy is to prosecute him. If you come against the prosecutor you not only need rights, but also a lot of money. There are prosecutors who will go to any end to get a conviction - not to achieve justice, but to get a conviction." He added that the grand jury was supposed to be a protection, but it doesn't always work that way.

The consensus of the panelists was that we need to be vigilant. Wachtler pointed out that in Nazi Germany the judges became "the handmaidens of terror." "I don't think it will happen here, but we have to be careful." Abramowitz added, "The extreme left and the extreme right are holding hands on this issue."

A thoughtful discussion followed. The panelists reiterated and emphasized the importance of the judiciary putting checks and balances on the legislative and judicial branches. They predicted that many test cases regarding the rights of privacy and other issues raised by the provisions of the Patriot Act. Some closing comments follow. Bessent: "We can have security and freedom. We have to ask: is it really going to make us more secure and at what price?" Wachtler: "You call it homeland security. I call it fatherland security." Abramowitz: "The government that we are so proud of is not just executive branch and military. The constitution has lasted this long because of its checks and balances. " Davidson: (Quoting former Chief Justice Louis Brandeis) "The most important thing that the government can do to protect against terrorism is not to practice it."

We are fortunate to have such an intelligent forum to express concerns about the possible erosion of our civil liberties Burton Lane, a British judge, said in 1990, "Loss of freedom seldom happens overnight. Oppression doesn't stand on the doorstep with toothbrush moustache and swastika armband-it creeps up insidiously, step by step, and all of a sudden the unfortunate citizen realizes that it is gone."