- The Washington Times - Tuesday, June 4, 2002

Absolutes kill; informed line drawing giveth life.To forget nothing, but to learn nothing is a formula for shipwreck.
By those counts, Attorney General John Ashcroft's guidelines issued last Thursday that loosen restrictions on FBI terrorism investigations are troublesome.
The new guidelines authorize agents to surf online sites and forums on the same conditions as the public generally for the purpose of thwarting terrorist crimes.
They further enable agents "to visit any place and attend any event open to the public, on the same terms and conditions as members of the public generally." Information extracted from such visitations must be discarded unless related to potential criminal or terrorist activity. In other words, no blackmail or other sinister files on citizens that darkly stained J. Edgar Hoover's long stewardship of the Bureau.
Mr. Ashcroft's revised guidelines, nevertheless, need amendment to strengthen safeguards against a return to the days of indiscriminate intelligence collection and retention under the banner of fighting communism, civil rights remonstrances, and Vietnam War dissent. The Guidelines, however, should not be revoked, for which some critics clamor.
The case for leaving the new investigative rules undisturbed goes something like this. Warring against terrorism is serious business. The prime objective is to frustrate second editions of September 11, not to punish terrorists after the fact. Intelligence sharing and retention is essential to catching terrorists in the plotting phases. The task is akin to solving a colossal jigsaw puzzle. Indeed, the FBI has been scolded by Republicans and Democrats alike for anemic surveillance and suspicion of immigrant Arab Muslims openly enrolled in flight training schools throughout the nation long before September 11.
President George Bush and the attorney general further emphasize that nothing in the relaxed guidelines transgresses the Fourth Amendment's protection against unreasonable searches and seizures. The U.S. Supreme Court has held that what can be discerned from public view falls outside constitutionally protected privacy whether the police conducting the surveillance reasonably suspect criminality. A First Amendment issue might arise if the FBI assembled files from open sources to frighten citizens from exercising their rights of freedom of expression and association. But the federal Privacy Act expressly prohibits the maintenance of any government record "describing how any individual exercises rights guaranteed by the First Amendment" unless pertinent to a bona fide law enforcement activity. The new guidelines promise fastidious compliance with that mandate.
The Constitution, however, is the beginning, not the end of enlightened government. As Justice Benjamin H. Cardozo advised, it tolerates much that is immoral or benighted. Thus, the Fourth Amendment permits one-party consensual wiretapping. But scores of states require consent from all communicants. The First Amendment denies a newsman's privilege to conceal anonymous sources from grand juries. But many states have enacted more generous privilege laws.
Despite their facial constitutionality, the inherent mischief of the new guidelines is the ineluctable chill on the eccentric, the unorthodox and the maverick. Federal crimes are numerous and technical. Citizen interactions with government are thick, whether relating to law enforcement, zoning, business licenses, or taxes. They might easily be targeted for open source terrorism surveillance under the expanded guidelines more because disliked for their political or cultural idioms than for their potential to solving a terrorist jigsaw puzzle. The former can readily be camouflaged as the latter at the incipient investigative stages when knowing what might later prove a telling clue is unknowable. Remember how President Franklin D. Roosevelt unleashed the Internal Revenue Service against his media scourges not to shore up federal revenues but to stifle legitimate dissent.
Gov. Huey Long did the same with minor emendations in Louisiana.
Laymen are customarily ignorant of their constitutional rights. The prospect that an FBI agent may be watching, even in a public place, may cow them into inactivity, homogeneity, and a Babbitt-like cultural conformity.
The individual right to pursue happiness within lawful boundaries will be impaired. Healthy citizen challenges to government will wane.
The new guidelines should thus be amended to require FBI agents to memorialize why they anticipate particularized open source investigations might scuttle a terrorism crime before watching or collection begins. The results should be recorded. The retention of information should require a written explanation of how it relates to antiterrorism plotting, either inchoate or mature. Each retained item should be reviewed at reasonable intervals to determine its continued terrorism relevance. The reviews should be undertaken by specifically identified agents from local field offices, the FBI's central office, and the CIA. The House and Senate Intelligence Committees should conduct annual independent appraisals of the FBI's open source surveillances and analyses. Privacy is too important to be left to the executive branch alone.
The proposed guideline amendments are no absolute insurance against government abuses. But the remaining risk seems prudent when balanced against thwarting another terrorism catastrophe. To tilt for perfection, as some guideline detractors would have it, is to consign government to rigor mortis, meaning poor, brutish, nasty, and short lives for all.


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