Will the Feds be watching you?

by David Moberg

In These Times magazine, October 2001

In all past wars, the U.S. government has restricted civil liberties of some or all citizens. Nearly always, the country later regretted those moves as ill-conceived and ineffective, from the Alien and Sedition Acts under John Adams to the Palmer raids at the end of World War I to the internment of Japanese in World War 11 to domestic spying and infiltration of dissident groups during the Vietnam War.

Once again, curtailment of liberties and invasion of privacy seem quite likely in the ill-defined new War on Terrorism, especially because intelligence operations will play a major role, the targets are shadowy, suspected members of the terrorist network are believed to live-often for years as "sleepers"-in the United States, and this "war" has no definable end.

A heightened public awareness of past | abuses and the rhetorical commitment by a | wide spectrum of politicians to safeguard civil liberties will help avoid the worst of these transgressions-like the Japanese internment. Yet after September 11, polls showed a surge in the percentage of Americans who said they were willing to trade some rights and privacy for greater security. Nevertheless, according to the New York Times, about 35 percent of Americans surveyed shortly after the attacks believed it would not be necessary to give up civil liberties to combat terrorism and were more worried about the government passing such restrictions than failing to enact new anti-terrorism laws. An unusually broad alliance of groups from left to right also has called on Congress to move slowly on new legislation and hold full hearings. Their skepticism is warranted. The administration is promoting a broad new Anti-Terrorism Act that contains measures that might help in the battle against terrorism along with significant, as yet unjustified, restrictions on civil liberties.

Protecting civil liberties should remain a top priority even in time of war, conventional or not. The government not only is mandated to defend those core cultural values, but a well-functioning democracy is critical, even if not always adequate, to restrain excesses of government in wartime. Yet if certain restrictions on civil liberties would seriously aid in the capture of those responsible for the September 11 attacks or the prevention of future attacks, then those restrictions could be both constitutional and popular.

"Nobody, including the ACLU, has ever argued that any right is absolute," says ACLU President Nadine Strossen. "What we do demand, and the Constitution guarantees, is that the government does not infringe any right unless it comes up with evidence that infringement is justified in advancing an important goal. Protecting human life and national security are of utmost importance. But what should not be accepted on the word of the attorney general is whether each particular measure is necessary or even effective to that goal."

With regard to most of the provisions in the proposed antiterrorism legislation, the administration has not made a compelling case that current law enforcement powers are inadequate or that the changes would greatly improve the security of citizens. Indeed, Attorney General John Ashcroft admitted to the House Judiciary Committee: "I cannot say to you if we had enacted these [changes in the law] in August, we would have curtailed the activities in September, nor can I assure this committee that we won't have terrorist acts in the future."

There are several fundamental problems with the Bush legislation. First, it uses an overly broad definition of terrorism, permitting even small acts of destruction of federal property- like a rock thrown through a window in the course of a demonstration-to trigger a sweeping range of anti-terrorist provisions. Second, in many cases the legislation gives law enforcement agencies new powers, with reduced judicial oversight of wiretaps and other electronic surveillance, that will extend to all criminal investigations, not just cases of terrorism. Third, changes in the law would be open-ended.

There are pragmatic, as well as principled, problems with the Bush proposals. Law enforcement agencies have not effectively used the powers they already have. The FBI, for example, is unable to manage the data that it already collects, and vast new snooping powers would simply overwhelm law enforcement agencies with information they couldn't analyze. "The FBI is hardly a flawless agency, and there have been many instances recently of incompetence, at best," Strossen says. "That's another reason to pause at extending more powers to an agency with a history of abuse."

In some cases, the new legislation would simply expand powers already available, such as obtaining search warrants for "roving" wiretaps. Ashcroft insists that law enforcement agents must be able to tap into any telephone, Internet or other communication device used by an individual, rather than get wiretap authority for each device. But under certain circumstances, such roving wiretaps are now authorized, even though the ACLU and others question the effectiveness and the constitutionality of all types of wiretaps.

Now law enforcement agents can require telephone companies to track numbers dialed from or to a particular telephone simply by asserting that it is relevant to an ongoing investigation. Bush and Ashcroft would extend such monitoring to the Internet. But tracking email and Websurfing habits is inherently more intrusive, since standard address forms, search engine entries or Web site names all reveal more substantive information about an individual than numbers dialed on a telephone. If police want such content from telephone calls, they must get search warrants, which require more judicial scrutiny than orders to monitor numbers dialed. In addition, the bill apparently would expand the use of the FBl's Carnivore system for monitoring the Internet, which allows law enforcement agents to inspect all messages that pass through an Internet service provider, not just the messages of the person under investigation.

The administration's proposals also push into new legal areas, for example, broadly expanding the use of secret searches-in which law enforcement agents may search someone's property without notification for 90 days or more-to all criminal cases, not just serious terrorism cases. "Over time," ACLU legislative counsel Rachel King told the House Judiciary Committee, "delayed notice will become the exception that swallows the rule, dealing yet another crushing blow to the Fourth Amendment."

While it would be good for law enforcement agencies across the country and across borders to cooperate more in tracking suspected terrorists, blurring the lines between military and criminal investigations, and between foreign intelligence and domestic criminal inquiries, poses serious problems. The legal standards for the military or intelligence agencies, whether for obtaining wiretaps or conducting other investigations, are much looser than for domestic crimefighters, and it would be dangerous to have those less protective standards spread to crime investigations generally. In particular, the administration wants to use wiretap information collected in foreign countries by methods that would be illegal in the United States. This would open up the risk of secret collaboration of U.S. agencies with foreign intelligence or law enforcement bodies to circumvent domestic law.

Although tighter regulations of money laundering, including seizure of terrorist funds, would be useful, the ACLU argues that the legislation as written gives the government power to seize a person's assets without proving he committed a crime and would extend the powers to criminal cases not related to terrorism. In recent years, groups on both the left and right have complained about government abuses of its power to seize property, especially in drug-related cases.

And despite Ashcroft's professed aim of more easily detaining and removing alien terrorists, the proposed law would permit the Immigration and Naturalization Service to detain noncitizens indefinitely simply on a vague certification by the attorney general that there is "reason to believe" the person may endanger national security, even if the person is not accused of being a terrorist. Similarly, noncitizens could be deported for contributing, at any time, to a group with any link to threats against property or persons, even if that group was not designated a terrorist group in the past. Critics worry that legal contributions to antiabortion groups or the African National Congress could be grounds for deportation under the statute.

Many of the administration's proposals seem to have been simply drawn from the longstanding wish lists of the FBI and other law enforcement agencies without a careful consideration of what might truly be needed to find and prosecute terrorists or to prevent future terrorist acts. Yet if progressive groups want to win popular support as they argue that the government should refrain from full-scale war and instead use police work to attack terrorism as an international criminal conspiracy, then they should support the most effective police strategies available while still insisting on maximum protection of civil liberties.

Indeed, parts of the Bush legislation, such as making it a crime to harbor a terrorist or expanding trade sanctions to fight terrorism, draw little opposition. Even some of the more controversial measures could be acceptable if the legislation were tightly focused on terrorism and, as the ACLU has suggested, excluded all offenses in which the defendant did not intend to cause death or act with reckless disregard for human life." At the same time, the legislation could be written to expire within two years if not renewed by Congress, thus providing legislative review and safeguards against abuses and making clear that the law is not intended to set new precedents for all criminal investigations.

The burden of proof rests with Ashcroft and the administration to demonstrate precisely why any new powers are needed-and the greater the encroachment on civil liberties, the heavier that burden. If any freedoms are to be curtailed, it must be for the narrowly focused and limited purpose of fighting terrorism. There is no reason to let the terrorists-or law enforcement officials-compound the damage of September 11 by hijacking the Constitution as well.

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