Looking Ahead in a New World, Page 4

Dial 911 for Liberties Lost
Anti-terrorist bill takes shots at civil liberties
by Ron Kahn

It took weeks for the enormity of the September 11 tragedies and the dangers of terrorism to sink in for me. When not in class or preparing for one, I was transfixed to the TV, where the threats of capturing the terrorists “dead or alive” and of stopping their supporters filled the airwaves. Later my thoughts shifted, and I really focused on the impact of the attacks. At an Oberlin College gathering, I announced that I felt violated, as was my country, for the first time in my life. Like many of us, I thought of the assassination of President Kennedy, the other horrific national event whose announcement summons memories of our exact whereabouts. (I was an undergraduate student at Rutgers, walking into the building that housed the political science department.) There had been talk of plots and of Lee Harvey Oswald’s connections with Russia. But I did not feel violated, nor did I fear that the internal security of our country was at risk.

September 11 was different. All we knew was that two planes had been flown into the World Trade Center, a third into the Pentagon, and a fourth plane, which was most likely headed for Washington, DC, had crashed in Pennsylvania. We were told that more than 5,000 human beings had been killed. When our nation’s airports were closed simultaneously for the first time in history, it was apparent that the United States was under attack and that the most searching criminal investigation in the history of the world had just begun.

My attention then focused on the various anti-terrorist bills being considered by our government. Traditionally, elected officials who are knowledgeable in civil-rights matters have served in key positions on the Senate and the House Judiciary committees—Senator Patrick Leahy of Vermont and Congressman Barney Frank of Massachusetts among them. With Senator Jim Jeffords leaving the Republican Party, the Democrats now controlled the Senate. There was hope for a built-in safeguard for the protection of civil liberties.

As I followed the proposed Congressional anti-terrorism legislation, I was chagrined, and became even more so about the anti-terrorism law signed by President Bush on October 26. In a lengthy search for an acronym, the legislation became known as the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” (The USA PATRIOT Act). Within hours of its passage, the FBI released new directives on how to use the law in investigating 9/11-related events.

A variety of new “tools” was now available to law enforcement officials in apprehending terrorists and their supporters. The FBI had sought from Congress many of these provisions prior to 9/11 for criminal investigations, such as the roving, nationwide wiretap provisions already in place to apprehend drug kingpins and mobsters. Others were new, such as allowing the release of grand jury testimony, with or without a resulting indictment, to law enforcement officials if the information is believed to be related to terrorism in any way.

Under the new anti-terrorism law, immigrants can be detained for seven days without charges (up from the previously allowed two days), with review of the legality of a detainment to occur every six months or less. Law enforcement officials can now approach a special intelligence court to gain authorization for a nationwide roving wiretap and national search warrant in conducting terrorism investigations, bypassing the usual safeguards of a federal court.

Email messages—including information such as when and to whom they are sent—can now be subject to government subpoenas, and federal law enforcement agencies can conduct “sneak and peek” searches of a home or office without making an effort to inform its occupant.

Furthermore, the FBI and CIA can share information believed to be pertinent to a terrorism investigation, thus eliminating firewalls between the law-enforcement and intelligence communities that were put in place to stop the CIA from spying on citizens. And finally, information gained from national security wiretaps is now available for use in regular criminal investigations.

Our government has a history, in times of crisis, of seeking law enforcement powers that are likely to violate our civil liberties; it occurred after the Oklahoma City bombing in 1995. Unfortunately, the impact of the USA PATRIOT Act on civil liberties is far greater than what is evidenced by a list of new governmental powers. The definitions of “terrorism” and the “support of terrorism” are vague. There is no clear requirement of the government to prove an individual’s intent to engage in or support terrorism before being indicted or convicted under the new act. Therefore, immigrants may be detained and deported, and citizens investigated, for simply attending a meeting of a group that is considered suspect. All of these provisions will have a chilling affect on First Amendment freedoms of speech and assembly and our rights to gain useful knowledge.

The new legislation is also a threat because it passed so easily. Given our nation’s concern with war and bioterrorism, there has been little debate about our civil liberties or the need to limit potential abuse of law enforcement powers. Focus groups run by civil liberties groups found wide support for these new measures. I fear that the effect of this law on academic freedom, in particular for students and professors searching for the truth about American foreign and military policy, will be devastating. (Since the events of September 11, law enforcement officials have visited over 200 colleges and universities gathering information about students, particularly foreign students, but Americans as well.)

“Can I go to this particular web site using my own computer, or will I make it onto a governmental list of possible terrorism supporters?” one wonders. “Should I use campus or library computers, rather than my own, to gain knowledge about terrorism, Afghanistan, and American foreign and military policy? Will Oberlin be forced to hand over private information on my use of the Internet, even though President Nancy Dye has clearly stated it is against College policy to do so except under court order?”

Fortunately, there is a safeguard in the legislation—a four-year sunset provision for some aspects of the law. This means that Congress must renew some sections of the law in four years for them to remain in effect. But sunset provisions can be a forceful protection of civil liberties only if there is a will to stop such practices when they expire. What if lawmakers and citizens become used to the new law enforcement powers? A law in action is a precedent. In four years, will lawmakers who are concerned about civil liberties have a basis to evaluate the actions of the FBI, CIA, and other government agencies? Will there be enough information to make reasoned arguments about the effect of these new powers on First Amendment freedoms? Will misuse of these powers against immigrants rather than citizens mean that fewer people will be concerned?

Perhaps our best hope lies not in the sunset provision, but in the recognition that sincere efforts must be made to stop terrorist acts before they occur. My hope is that the law-enforcement and intelligence communities will not have the resources to impede legitimate political speech, demonstrations, and academic inquiry in their pursuit of terrorist acts.

There is an interesting provision in this law that might prove to be a valuable protection of privacy. Citizens can sue the government if private information is leaked to people or agencies not permitted to have it—information gained, for example, through new wiretapping, surveillance, and investigative powers. One hopes that the ACLU and other advocacy groups will assist with such lawsuits; that they will act as a check on government abuse of powers and provide a record for the re-passing of the law four years hence.

I hope, too, that those in Congress who supported the USA PATRIOT Act, especially the civil libertarians in the Senate, are warranted in their decision to trust the government not to use such powers to violate citizens and those whom we have permitted into our country as guests. Unfortunately, my first hopes for moderation in the implementation of the USA Patriot Act seem dashed already. A second wave of attacks on civil liberties, announced in November, included a presidential directive ordering any non-citizen identified by the president as a terrorist or as aiding terrorism to be tried by a military tribunal under the Secretary of Defense. The government also announced it will deny attorney-client privileges of privacy to all incarcerated alleged terrorists and will interview 5,000 young Middle-Eastern men who are the U.S. on temporary visas, although there is no evidence of wrongdoing on their part.

Unlike the reaction to the first wave of attacks on civil liberties, many have spoken out against these new proposed violations. Police departments have refused to cooperate with the FBI. Many in Congress who supported the USA Patriot Act have now seriously questioned the constitutionality and wisdom of these new actions.

If the government violates our trust, I will feel doubly violated as a result of the September 11 tragedy, and it will be very difficult to tell my students to keep the faith. Most importantly, the terrorists will have been successful not only in killing 5,000 human beings and reducing the Twin Towers to dust, they will have denied us the basic liberties that are the hallmark of our nation.

Ron Kahn, James Monroe Professor of Politics and Law, teaches courses on American constitutional law and the First Amendment and chairs the committee which administers the law and society major at Oberlin College

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