La
possibilité de limiter les libertés fondamentales en raison d’un
état d’urgence est en discussion aux EU. Si la Cour suprême
et les tribunaux ordinaires admettent traditionnellement que le
Président exerce des pouvoirs d’urgence en temps de crise, reste
à savoir s’ils admettront la validité constitutionnelle de
lois qui renforcent les pouvoirs de surveillance électronique et d’investigation
des autorités de police. Il semble que oui selon l’article
ci-joint du NYT.
September 19, 2001
THE COURTS
Government Has Power to Curb Some Freedoms
By WILLIAM GLABERSON
The Constitution does not give the government sweeping
emergency powers to limit civil liberties. But legal experts say the courts
have effectively ceded to the government vast powers to limit many freedoms
when the nation's security was threatened in the past.
As a result, the debates in Washington and state legislatures
about limiting civil liberties to battle terrorism could be decisive because
many of the new limits may never receive rigorous court review.
"The courts have always interpreted the limits on government
action much differently during times of national crisis," said Michael C.
Dorf, a professor of constitutional law at Columbia Law School. "So as a
matter of practical fact, the government has emergency powers."
Attorney General John Ashcroft is pressing Congress for a series
of new anti-terrorism laws, including measures that would expand electronic
surveillance and the search powers of law enforcement officials. In New York,
Attorney General Eliot L. Spitzer has called for a law expanding wiretap
authority, and the State Senate passed such a bill on Monday. Other states are
expected to consider similar measures.
While courts will retain the power to hear challenges to any
restrictions on civil liberties that are part of the new laws, lawyers say the
president's martial language and popular sentiment will prompt judges to defer
to government officials in their reviews of such measures as expanding wiretapping
efforts.
History is full of examples of the courts approving limits on
civil liberties when the country was perceived to be in danger.
"The greater the threat, the greater the leeway the courts
will give government," said Peter H. Schuck, a professor at Yale Law
School.
In one case that arose in World War I, a group of Socialists were
arrested for distributing pamphlets that urged peaceful opposition to the
draft. The demonstrators were tried and convicted under the Espionage Act,
which included provisions barring efforts to obstruct enlistment in the armed
forces.
The arrests were upheld by the Supreme Court in 1919, which issued
a landmark opinion by Justice Oliver Wendell Holmes Jr., who was often a
champion of First Amendment freedoms. During war, he wrote, statements that
might be protected in ordinary times could be barred.
"The most stringent protection of free speech," Justice
Holmes wrote, "would not protect a man in falsely shouting fire in a
theater and causing a panic."
In an atmosphere of cold war anxieties in 1951, the Supreme Court
approved the conviction of leaders of the Communist Party for advocating the
overthrow of the government.
The opinion concluded that the need to bar even threats of
violence against the country was "a substantial enough interest" to
limit First Amendment freedoms.
Some precedents approving limits on civil liberties are now widely
viewed to have been constitutional errors that would not be repeated today.
Many legal experts say the Supreme Court's approval of the internment of
Japanese-Americans during World War II has been discredited. They say courts
would now strike down any such categorical measures against Arab-Americans that
might be contemplated.
But some lawyers say the more extreme court decisions of the past
show how easily judges can be swept up in a warlike mood. "Those cases are
now seen as mistakes," said David Cole, a professor at the Georgetown
University Law Center. "But we repeat our mistakes rather than learn from
them."
Some constitutional experts say the public in recent decades has
come to view many civil liberties — like the right to exchange political
views — as central to American life.
For that reason, some experts say courts might now be more willing
to be critical of the government than they have in the past.
Erwin Chemerinsky, a constitutional law expert at the University
of Southern California, said the Supreme Court's decision in the 1971 Pentagon
Papers case showed that modern courts could be independent of government
officials. In that case the court refused the government's request to block
publication of secret revelations about the Vietnam war for reasons of national
security.
Justice Potter Stewart wrote that publication could be stopped
only if it would "surely result in direct, immediate and irreparable
damage to our nation or its people."
That test might be met by some of the measures now being considered,
like intercepting computer communications among suspected terrorists. But Mr.
Chemerinsky said he thought the courts would not rubber- stamp more extreme
measures. Wholesale strip searches at airports, he said, would probably fail in
the current Supreme Court.
"This court is institutionally deferential," Mr.
Chemerinsky said, "but I don't think this is a court that will say,
`Anything goes.' "
But other constitutional law experts said the current justices
would be influenced by the atmosphere of war.
Randolph M. McLaughlin of Pace University Law School in White
Plains said the debate in the coming weeks about what measures were necessary
to protect the country might be the last meaningful debate on the issue.
"This Supreme Court," Mr. McLaughlin said, "will
ratify the laws that are passed during this period."