and Civil Liberties
Friends Committee on National Legislation
Newsletter, October 2001
Within days of the September 11 attacks, the Administration
presented Congress with a wish list of expanded police and prosecutorial
powers. There was no indication that these proposals had emerged
from a thoughtful analysis of national security failures. Nor
were these proposals designed to address specific deficiencies
that might have prevented the September 11 attacks or future attacks.
Congress passed the USA PATRIOT Act, now signed into law,
that fulfills most of the Administration's requests. Many of the
provisions threaten constitutionally guaranteed rights and freedoms.
These include the First Amendment right to free speech, the Fourth
Amendment rights to be secure from unreasonable searches and seizures
and to have searches conducted only when there is "probable
cause" (e.g. to believe that a crime has been committed),
and the Fifth Amendment right to "due process of law"
(in criminal proceedings).
"Domestic terrorism" - a new crime. This newly-defined
category of crime could be interpreted to include some political
protests and acts of civil disobedience. It is not needed to counter
terrorism but could be used by the government to severely prosecute
relatively minor offenses and thus stifle dissent.
Enhanced surveillance. Prior to the USA PATRIOT Act, law enforcement
authorities could conduct wiretaps only when they had probable
cause to believe that a crime had been (or was about to be) committed.
Searches of homes and their contents required warrants for which
probable cause had to be demonstrated. A high level of confidentiality
was maintained for student records, which may contain sensitive
The USA PATRIOT Act contains provisions which significantly
diminish these Fourth Amendment guarantees. Here are a few examples.
* "Sneak and peek searches." The legislation allows
law enforcement authorities to enter a home, office, or other
private place and conduct a search, take photographs, and download
computer files without notifying the person whose property is
being searched until sometime after the search was conducted.
This authority is not limited to anti-terrorism investigations
but also extends to criminal ones.
Expanded wiretap authority. Several provisions reduce or eliminate
the role of judges in ensuring that wiretapping and other electronic
surveillance is carried out legally and with proper justification.
For example, devices which, on phone lines, track only incoming
or outgoing phone numbers (but not the content of calls) and which
can be installed without the government having to demonstrate
probable cause will now be applied to Internet communications
where they will record some information about message content.
Moreover, the warrants for installing these devices will have
nationwide application which will make it nearly impossible for
the judges who issue the orders to monitor them. The problem with
provisions such as these is that they will compromise the privacy
of countless innocent people, both those who are targeted erroneously
for this kind of surveillance and others who communicate with
persons under surveillance.
* Reduced privacy of student records. The legislation permits
the Department of Justice to seek warrants for educational records
deemed relevant to an "authorized investigation" and
to disseminate the information for "official purposes."
In recent decades, college campuses have been foci for dissent
against controversial government policies. Fear of having personal
information disseminated could deter some students from exercising
their right to dissent. This, combined with the newly-created
crime of "domestic terrorism," opens up the chilling
possibility that the government could effectively quash student
Information sharing. "Foreign intelligence" information
(defined broadly to include information related to national security
and U.S. foreign policy) gathered during criminal (not necessarily
anti-terrorism) investigations may be distributed to the Central
Intelligence Agency, the National Security Agency, the Immigration
and Naturalization Service, the Secret Service, and the military,
without judicial review. The provision applies to U.S. citizens
as well as non-citizens. Furthermore, the agencies receiving this
information have virtually unlimited use of this information,
so long as they can justify their use or disclosure of the information
as being "necessary in the conduct of [their] official duties."
This provision resurrects the specter of the government spying
on U.S. citizens and using that power to limit free speech. This
kind of information-gathering was used effectively to stifle dissent
during the height of the Cold War.
Indefinite detention. This legislation exposes non-citizens
to the possibility of indefinite detention on the authority of
the Attorney General. The provision stipulates that when a non-citizen
is detained on grounds of suspected terrorism or endangering national
security, deportation proceedings or criminal charges must be
filed within seven days. However, non-citizens whose countries
of origin will not accept them may be detained for additional
six-month periods if the Attorney General certifies the individuals
as national security threats. The law provides no guidance on
the process the Attorney General should follow in making such
A dangerous path
We believe that Congress, in passing this anti-terrorism legislation,
has moved down a very dangerous path. Constitutionally guaranteed
rights and freedoms should not be abridged without very close
and careful scrutiny. Each provision that affects civil liberties
should meet two important tests.
* First, any expansion of police and prosecutorial powers
should offer significant additional protection against terrorism.
If the same level of protection could be achieved by full implementation
of existing laws, then new powers are not needed.
* Second, any provision that would limit a constitutionally
guaranteed right should be narrowly tailored to ensure the least
effect on civil liberties consistent with providing the necessary
Balancing the rights of individuals with the good of the nation
or community is an exercise that people in the U.S. have engaged
in throughout U.S. history. It is vitally important that, as the
nation responds to the September 11 attacks, Congress and the
courts continue to labor with this balance. If this does not happen,
then those who would harm the U.S. will, by damaging freedom and
democracy, have achieved a far greater success in the long run
than they did on September 11.