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
"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
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
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
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.