While a vast majority of Americans are pleased with the progress of the so-called “war on terrorism” – declared in the wake of the Sept. 11 attacks on New York City and the Pentagon – an increasing number of lawmakers, civil libertarians and analysts from both sides of the political spectrum are becoming increasingly concerned about a possible misuse of new anti-terrorism laws.
Last week, President Bush signed into law new powers sought by Attorney General John Ashcroft and the Justice Department that will allow federal law-enforcement agencies to “wiretap” the entire Internet. Under the USA Patriot Act of 2001, law-enforcement agencies can also, in “rare instances,” search a person’s home without informing that homeowner for up to 90 days – the so-called “sneak-and-peak” provision – as well as implant a hidden “key logger” device on that suspect’s computer, allowing law-enforcement officials to capture passwords and monitor every keystroke of a suspect’s computer.
Also, the government’s power to detain terror suspects was expanded. Federal law-enforcement agencies can hold a terror suspect for up to seven days before charging him with a crime or beginning deportation proceedings.
It is now against the law to harbor a terrorist, easier for U.S. criminal investigators and intelligence officers to share information, and the Treasury Department has new powers to target foreign nations and banks deemed money-laundering threats.
Finally, law-enforcement agencies can obtain subpoenas to force Internet service providers to provide e-mail transmission records of suspected terrorists.
In somewhat of a compromise to civil libertarians, Congress denied the Bush administration the right to indefinitely detain immigrants suspected of terrorism. Also, the authority for expanded surveillance of computers and telephones will expire after four years unless renewed by Congress.
Should those protections be enough to quell concerns about future abuses? In a word, no, say some political analysts, lawmakers and experts.
“We should think always that every new law may be enforced by our worst enemies,” said Jon B. Utley, the Robert A. Taft fellow in constitutional and international studies at the Ludwig von Mises Institute. “Think about maybe a Hillary Clinton enforcing these laws to ‘investigate’ conservatives.”
Though liberal Democrats are often associated with wide expansions of the size and scope of the federal government, Utley said Republican administrations are guilty of “many of the most egregious taking away of constitutional freedoms. …”
“RICO and the seizure laws – whereby police can confiscate cars, boats, even homes without due process and keep the money for their own departments,” were products of GOP administrations, he said.
Bush has said he will ensure that the new law will be used with the Constitution foremost in mind.
“Today, we take an essential step in defeating terrorism while protecting the constitutional rights of all Americans,” Bush said during an East Room signing ceremony at the White House Oct. 26. “This government will enforce this law with all the urgency of a nation at war.”
But Sen. Russ Feingold, D-Wis., the only senator to oppose the bill when it came up for a vote in the Senate Thursday, has warned that the American people “will lose that war without firing a shot if we sacrifice the liberties of the American people.”
“It is one thing to shortcut the legislative process in order to get federal financial aid to the cities hit by terrorism. We did that, and no one complained that we moved too quickly,” Feingold said last week during debate over the Patriot Act. “It is quite another to press for the enactment of sweeping new powers for law enforcement that directly affect the civil liberties of the American people without due deliberation by the people’s elected representatives.”
Some groups sought to at least minimize the effects of the new law by opposing portions of it. An Oct. 19 letter sent to members of the House and Senate Judiciary committees implored lawmakers to delete the sneak-and-peek provision, “because it undermines the Fourth Amendment protection from unreasonable searches and seizures.”
“Sneak-and-peek is a radical departure from the way our Founding Fathers tried to protect us from unreasonable searches and seizures,” said J. Bradley Jansen, deputy director of the Free Congress Foundation’s Center for Technology Policy, in the letter.
The center, along with the American Civil Liberties Union and 17 other groups, signed the letter.
“Citizens are supposed to enjoy the protection of the Fourth Amendment. What makes this measure particularly troubling is that the sunset provisions that apply to other measures of the anti-terrorism bill do not apply here,” he said. “Furthermore, it applies to all crimes that fall under federal jurisdiction, not just those involving terrorism.”
Rachel King, the ACLU legislative counsel who drafted the letter, said if the government really believed it needed the sneak-and-peek provision, it should implore Congress to hold hearings to discuss it before lawmakers voted – a recommendation that did not get serious consideration.
“Sneaking the provision on to a bill that the administration knows will pass is playing fast and loose with our Constitution,” she said.
Citing the Federal Rules for Criminal Procedure, the groups said covert searches for physical evidence, generally speaking, are illegal in the U.S.
“Of course, there is no doubt that if we lived in a police state, it would be easier to catch terrorists,” said Feingold. “If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations or intercept your e-mail communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists.”
Utley pointed out that RICO statutes – racketeering and organized crime provisions originally written to target the Mafia – have been misapplied to gain convictions against doctors for private billing practices and against Americans protesting at abortion clinics.
“After this horrendous series of attacks … [FBI Director Robert Mueller] has suggested that we may have to limit some of our freedoms in order to deal with terrorists,” said Paul Weyrich of the Free Congress Foundation. “The truth is that if we further emasculate our Constitution, the terrorists will have achieved the greatest victory imaginable. Their triumph won’t just be the thousands of people they killed; the triumph will be if they see our democratic institutions crumble.”
“The Founders who wrote our Constitution and Bill of Rights exercised that vigilance, even though they had recently fought and won the Revolutionary War,” said Feingold. “They did not live in comfortable and easy times of hypothetical enemies. They wrote a Constitution of limited powers and an explicit Bill of Rights to protect liberty in times of war, as well as in times of peace.”