Monday, November 12, 2001

It is difficult to wield the Bill of Rights against the new anti-terrorism law because, as George Melloan has written in the Wall Street Journal, terrorist attacks “engender an ‘anything goes’ mentality within the nation under attack.” However, lost in the general approbation of this law is his further point that “if the attacks force a general curtailment of civil liberties, the terrorists have won.”

But Mr. Melloan felt it was a good idea that Congress attached a “sunset clause” to the anti-terrorism bill that is now the law. But these evildoers as President Bush accurately characterizes the terrorists will continue their shadowy war against us for an indefinite time. So, in four years when the “sunset clause” requires Congress to review this law to see if it’s gone too far it’s highly unlikely there will be any changes in those sections of the law that seriously curtail civil liberties.

Already, the rush to pass the anti-terrorism bill was so swift that when it came time to negotiate the differences between the House and Senate versions in a traditional conference, the leaders quickly met behind closed doors in a “pre-conference,” and no formal conference was held. Therefore, when parts of the bill are challenged in court and they will be the judges will not have before them a clear sense of the legislative intent of this law.

Except for the American Civil Liberties Union, which has provided careful and valuable analyses of the new law and a few other groups that worry that the “anything goes” mentality will do long-term damage to the Constitution the public at large is far more concerned with security than with the new law’s giving extraordinary powers of surveillance, with limited judicial review, to the executive branch.

As Sen. Russell Feingold, Wisconsin Democratic, who cast the only vote in that body against the anti-terrorism bill, tried to tell his colleagues many of whom, as in the House, had not had time to thoroughly read the legislation the new law “goes into a lot of areas that have nothing to do with terrorism and have a lot to do with the government and the FBI having a wish list of things they want to do, whether it be getting into people’s computers, medical records and other areas not related to terrorism.”

What has not been clearly enough reported in the media is the new law’s wider and looser standards of government electronic surveillance of phones, computers, Internet searches and e-mail that not only apply to terrorism investigations but also, in some areas, are expanded to include regular criminal investigations. The very specific requirements of the Fourth Amendment have been somewhat attenuated through the years, but the Founders would never recognize what has happened to their handiwork in this law that shreds privacy protections not only for suspected terrorists.

Also expanded, for example, are permissible FBI secret searches gaining entrance to homes and offices when the subjects are away. In these so-called black-bag jobs, notice of what has been taken is delayed for a considerable time, and that makes it difficult to contest the legality of the search before the contents are revealed to a number of other intelligence agencies. It’s as if J. Edgar Hoover were still among us.

As for the celebratory, roving wiretaps in the law and the one-stop national warrant for them the government can now follow any suspect’s communications on all kinds of phones as well as pay phones. And the surveillance can also include any pay phone in the area visited by the suspect. Included are search engines in public libraries that nonsuspects may also be using. And, as law professor and privacy expert Jeffrey Rosen notes in the New Republic, “If your colleague [unbeknownst to you] is a target of a Foreign Intelligence Surveillance Act investigation, the government could tap all your [own] communications on a shared phone, work computer or a public library terminal.”

Another section of this anti-terrorism law allows the CIA to again spy on Americans at home. The CIA’s charter forbade that agency to engage in internal security functions. In the past, the CIA, when engaging nonetheless in these kinds of investigations, showed brazen disregard for Americans’ constitutionally protected rights. But, as in other sections of the new law, the very definition of constitutional rights is being diminished. And that makes the future composition of the Supreme Court all the more important.

While most Americans are not disturbed by the weakening of the Bill of Rights, James Van Buren, president of the Worcester County, Mass., bar association tries to remind us in that group’s publication that “Preserving our freedoms is the only sure way to thwart the terrorists’ goal.”

When, in four years, the sunset clause brings a congressional review of the effects of this law, we will see if Americans still believe the Constitution needs to be weakened.

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