"Why should we care? It's only the Constitution"
by Nat Henthoff
The Progressive magazine, December 2001
Two nights after the September 11 attack, the Senate swiftly,
by voice vote after thirty minutes of debate, attached to a previously
written appropriations bill an amendment making it much easier
for the government to wiretap computers of terrorism suspects
without having to go to various courts to get multiple search
warrants. The bipartisan bill was introduced by Senator Orrin
Hatch, Republican of Utah, and Dianne Feinstein, Democrat of California.
"Terrorism" was not defined.
That was the beginning of the steamroll. Now Attorney General
John Ashcroft has gotten his way with his originally titled Anti-Terrorism
Act of 2001, which coolly contradicted the earnest assertions
of the President and the Secretary of Defense that necessary security
measures would not violate our fundamental liberties because our
freedom is what we are fighting for. The final legislation passed
the Senate on October 25 by a vote of 98 to 1, with only Russ
Feingold, Democrat of Wisconsin, dissenting. In the House, the
bill passed 356 to 66.
The new law will permit government agents to search a suspect's
home without immediately notifying the object of the search. In
J. Edgar Hoover's day, this was known as a "black bag job."
The FBI then never bothered to get a search warrant for such operations.
Now, a warrant would be required, but very few judges would turn
a government investigator down in this time of fear. Ashcroft's
"secret searches" provision can now extend to all criminal
cases and can include taking photographs, the contents of your
hard drive, and other property. This is now a permanent part of
the law, not subject to any sunset review by Congress.
Ashcroft also asked for roving wiretaps-a single warrant for
a suspect's telephone must include any and all types of phones
he or she uses in any and all locations, including pay phones.
If a suspect uses a relative's phone or your phone, that owner
becomes part of the investigative database. So does anyone using
the same pay phone or any pay phone in the area.
Ashcroft neglected to tell us, however, that roving wiretaps
already became law under the Clinton Administration in 1998. At
that time, only Congressman Bob Barr, Republican of Georgia, spoke
against it in Congress, while the media paid little attention
to this brazen attack on the Fourth Amendment.
But Ashcroft demanded and received a radical extension of
these roving wiretaps: a one-stop national warrant for wiretapping
these peripatetic phones. Until now, a wiretap warrant was valid
only in the jurisdiction in which it was issued. But now, the
government won't have to waste time by having to keep going to
court to provide a basis for each warrant in each locale.
The expansion of wiretapping to computers, and thereby the
Internet, makes a mockery of Internet champion John Perry Barlow's
1996 "Declaration of the Independence of Cyberspace":
"Governments of the industrial world, on behalf of the
future, I ask you of the past to leave us alone.... You have no
sovereignty where we gather . . . nor do you possess any methods
of enforcement we have true reason to fear. Cyberspace does not
lie within your borders."
This government invasion of cyberspace fulfills the prophecy
of Justice Louis Brandeis, who warned, in his dissent in the first
wiretapping case before the Supreme Court, Olmstead v United States
(1928), "Ways may some day be developed by which the Government,
without removing papers from secret drawers, can reproduce them
in court, and by which it will be enabled to expose to a jury
the most intimate occurrences of the home."
This has come to pass. The government now has access to bank
records, credit card purchases, what has been searched for on
the Internet, and a great deal more for those who have "supported,"
or are suspected of terrorism.
Moreover, as Brandan Koerner, a fellow at the New America
Foundation, has pointed out in the Village Voice, the bill that
Congress passed so hastily on the night of September 13-and is
now part of the law- "lowers the legal standards necessary
for the FBI to deploy its infamous Carnivore surveillance system."
Without showing-as the Fourth Amendment requires-probable cause
that a crime has been committed or is about to be committed, the
government invades what's left of your privacy.
The fearful name "Carnivore" disturbed some folks,
and so it has been renamed DCS 1000. Carnivore, Koerner notes,
is "a computer that the Feds attach to an Internet service
provider. Once in place, it scans email traffic for 'suspicious'
subjects which, in the current climate, could be something as
innocent as a message with the word 'Allah' in the header."
Or maybe: "SAVE THE FOURTH AMENDMENT FROM TYRANTS!"
Carnivore also records other electronic communications.
There was resistance to the assault on the Bill of Rights.
In Congress, such previously unlikely alliances between Maxine
Waters and Bob Barr, Barney Frank and Dick Armey, helped hold
back Ashcroft's rush to enact his anti-terrorism weapons within
a week, as he had demanded. In the Senate, Patrick Leahy, chairman
of the Judiciary Committee, also tried to allow some deliberation,
but Majority Leader Tom Daschle usurped and undermined Leahy's
authority. Leahy ultimately caved and declared the law signed
by Bush on October 26 "a good bill that protects our liberties."
The House Judiciary Committee did pass by a 36-to-0 vote a
bipartisan bill that restored some mention of the Bill of Rights
to Ashcroft's proposals. But, late at night, that bill was scuttled
behind closed doors by Speaker of the House Dennis Hastert and
other Republican leaders, along with emissaries from the White
As a result, on October 12, the House, 337 to 39, approved
a harsh 175-page bill that most of its members had not had time
even to read. David Dreier, chairman of the Committee on Rules,
often seen being smoothly disingenuous on television, said casually
that it was hardly the first time bills had been passed that House
members had not read.
Democrat David Obey of Wisconsin accurately described the
maneuver as "a back-room quick fix," adding mordantly:
"Why should we care? It's only the Constitution."
And Barney Frank made the grim point that this subversion
of representative government was "the least democratic process
for debating questions fundamental to democracy I have ever seen.
A bill drafted by a handful of people in secret, subject to no
committee process, comes before us immune from amendment."
Among those voting against the final bill were: Barney Frank,
John Conyers, David Bonior, Barbara Lee, Cynthia McKinney, John
Dingell, Jesse Jackson Jr., Jerrold Nadler, Melvin Watt, and Maxine
Waters. Unaccountably, Bob Barr voted for the bill.
But House Judiciary Committee Chairman James Sensenbrenner,
as reported on National Public Radio, assured us all that this
steamrollered bill did not diminish the freedom of "innocent
Providing, of course, that the presumption of innocence holds.
Also late at night, on October 11, the Senate, in a closed-door
session, attended only by Senate leaders and members of the Administration,
crafted a similar, expansive anti-terrorism bill that the Senate
went on to pass by a vote of 96 to 1. Only Russ Feingold, a Wisconsin
Democrat, had the truly patriotic courage to vote against this
attack on the Bill of Rights that the President and the Secretaries
of State and defense have said we are fighting for.
As Feingold had said while the Senate was allegedly deliberating
the bill, "It is crucial that civil liberties in this country
be preserved. Otherwise I'm afraid terror will win this battle
without firing a shot."
In essence, the new law will, as The Wall Street Journal noted,
"make it easier for government agents to track e-mail sent
and web sites visited by someone involved in an investigation;
to collect call records for phones such a person might use; and
to share information between the Federal Bureau of Investigation
and the Central Intelligence Agency."
Until now, the CIA was not legally allowed to spy on Americans.
Also, previously secret grand jury proceedings will now be shared
among law enforcement and intelligence agencies.
In addition, the new law subverts the Fourth Amendment's standards
of reasonable searches and seizures by allowing anti-terrorism
investigations to obtain a warrant not on the basis of "probable
cause," as has been required in domestic criminal probes,
but on the much looser basis that the information is "relevant
to an ongoing criminal investigation"-not just terrorism.
The new law has a "sunset clause," requiring it
to be reviewed after four years to determine if these stringent
measures are still needed. But before this collusion in reducing
our liberties was effected, George W. Bush had assured us that
the war on worldwide terrorism will be of indeterminate length.
A Congress that so overwhelmingly passed this anti-terrorism bill
is hardly likely to expunge parts of it in four-or more-years.
And even if it did, evidence gathered in the first four years
could be used in prosecutions after that.
In self-defense, all of us should be interested in how terrorism
is defined in this historic legislation. As summarized by the
ACLU, the language in the final bill said: A person "commits
the crime of domestic terrorism if within the U.S., activity is
engaged in that involves acts dangerous to human life that violate
the laws of the United States or any State, and appear to be intended
to: 1) intimidate or coerce a civilian population; 2) influence
the policy of a government by intimidation or coercion; or 3)
affect the conduct of the government by mass destruction, assassination,
or kidnapping." (Note the words: "appear to be intended
to" and "intimidate. ")
Considering the loose language of the first two provisions,
the ACLU points out that "this over-broad terrorism definition
would sweep in people who engage in acts of political protest
if those acts were dangerous to human life. People associated
with organizations such as Operation Rescue and the Environmental
Liberation Front, and the World Trade Organization protesters
have engaged in activities that should subject them to prosecution
Furthermore, "once the government decides that conduct
is 'domestic terrorism,' law enforcement agents have the authority
to charge anyone who provides assistance to that person, even
if the assistance is an act as minor as providing lodging. They
would have the authority to wiretap the home of anyone who is
"Assistance" includes "support." So, contributions
to any group later charged with domestic terrorism- even if the
donor was unaware of its range of activities-could lead to an
investigation or those giving support.
The Bush Administration and its allies in Congress are confident
of continued public backing of these anti-terrorism measures,
and other incursions into what is left of the Bill of Rights.
As James Madison prophesied: "Wherever the real power in
a Government lies, there is the danger of oppression. In our democracy,
the real power lies in the majority of the Community."
After the terrorist attacks on September 11, poll after poll
has shown that 70 or more percent of Americans are willing to
give up some of their freedoms in order to stay free.
In all the news and commentary so far, little attention has
been paid to the fact that before September 11, the majority of
Americans had little knowledge of their own rights and liberties,
to begin with. So what do they have to fear now, losing what is
guaranteed to them under the Bill of Rights and the rest of the
Constitution, let alone care about what happens to the rights
In a survey conducted by the Freedom Forum's First Amendment
Center, Americans were asked: "To the best of your recollection,
have you ever taken classes in either school or college that dealt
with the First Amendment?"
Forty-seven percent of the respondents answered "No."
As I can attest from many years of visiting schools, including
graduate schools, such classes, when they exist, are quick and
superficial. As for the rest of the Bill of Rights, in classes
at Columbia and NYU graduate schools of journalism, eyes have
glazed when I ask what's in the Fourth Amendment or, for that
matter, the Fifth, Sixth, and Eighth Amendments.
As for the First Amendment-and the right to criticize the
government is never more fundamental than in a period of justified
national fear of a nearly invisible enemy-consider these results
of the First Amendment Center's "State of the First Amendment"
2001 survey released on July 4
Nat Hentoff is a columnist for the Village Voice, NEA Newspapers
Syndicate, Legal Times, and Editor & Publisher. His most recent
books are "Living the Bill of Rights" (University of
California, l999)and "The Nat Hentoff Reader"(Da Capo