After September 11, 2001, the Justice Department began asking for more and more “tools” to help law enforcement agencies identify potential terrorist threats and, as administration spokesmen like to say, “protect the American homeland.”
No conservative can disagree with the goal, and virtually all understand the need to provide effective tools to those responsible for rooting out terrorists and blocking their plots within our borders. But many are beginning to ask if there has been enough thought about the impact on privacy and constitutional rights of all the “tools” acquired since September 11 and the new ones sought today.
Increasingly, conservatives outside Washington express real concern about giving federal law enforcement more power in the name of national security. They fear the “tools” the government seeks to protect us from our enemies eventually could circumscribe our own liberties. Given the maneuvering over H.R. 3179, they have good reason for concern.
H.R. 3179 is the latest attempt to expand the scope of the Patriot Act even before it is clear all the current Patriot Act powers are necessary and used appropriately. Despite the unanswered concern, key congressional leaders resorted to stealth late last year in attaching a measure to the 2004 Intelligence Authorization bill that drastically increased the FBI’s power by allowing the agency to demand records from car dealers, pawnbrokers, travel agents and other businesses without judge or grand jury approval. Neither House nor Senate debated it; the real action took place behind closed doors.
This also seems to be happening with H.R. 3179 — the Anti-Terrorism Intelligence Tools Improvement Act of 2003. House leaders planned to rush the bill to the floor for approval without any real debate until a ruckus was raised by a coalition ranging from the American Civil Liberties Union to the Free Congress Foundation and the American Conservative Union. In an attempt to skirt such opposition, there was talk of adding H.R. 3179 to the House intelligence bill, but to no avail. The intelligence bill passed the House without H.R. 3179.
One part of H.R. 3179 — the so-called “lone wolf” expansion of intelligence wiretaps — is attached to the Senate bill, but is opposed by conservatives like former Georgia representative and National Rifle Association board member Bob Barr and Jane Harmon, ranking Democratic on the House Intelligence Committee. Passage of the Senate version would necessitate a conference debate on the “lone wolf” issue — opening up the package of Patriot Act expansions in H.R. 3179. Again, this closed-door deliberation would shut the public out of voicing any concerns. In short, this dangerous bill isn’t dead yet.
Even the most cursory examination reveals H.R. 3179 would expand Patriot Act powers without any built-in accountability and oversight. One of its most troubling provisions involves new powers for searches ordered by National Security Letters. These can be used to demand access to individual or business records even absent a showing of individual suspicion. There is no way either the target of the investigation or those on whom the letters are served can challenge them as too broad. The statute, in fact, makes it a crime for a recipient to raise alarms in the press, or even to the Justice Department’s inspector general or the relevant congressional committees that should exercise oversight.
Another H.R. 3179 provision restricts a judge’s power to decide if admission of classified information in criminal cases is warranted. The government would ask such evidence be allowed without opposing counsel present. The request would need not be in writing. Mr. Barr, a member of the Judiciary Committee when in Congress and a former U.S. Attorney and CIA official, told the House hearing this provision “represents an incremental shift of power away from the court and towards the prosecutor. Congress should hear much more from both prosecutors and defense lawyers with experience in this area before making such a change, in order to determine whether the effect may be much larger than intended.”
These are only two of the changes sought by H.R. 3179. Few Americans will lose much sleep over either change by itself, but they should when these changes are added to the other “tools” being acquired by law enforcement.
Hearings on this legislation were never completed. They were suspended early to allow members to take part in roll call votes on the House floor and have yet to be reconvened.
If history repeats itself, the hearings may never be resumed: H.R. 3179 could be added to the final version of the intelligence bill at the behest of House leaders, without any opportunity for rank-and-file members to add amendments on the House floor.
Conservatives should be concerned about all this. It is disturbing enough that key congressional leaders are maneuvering to enhance Executive Branch power without adequate debate on appropriate oversight and accountability. It was James Madison in Federalist 58 who said we did not fight for an “elective despotism” but one in which powers were divided between the different branches of government so “no one could transcend their legal limits without being effectively checked and restrained by the others.”
However, by Congress granting great power — without checks and balances — to the Executive Branch, it abdicates its own responsibility and encourages future abuses by federal law enforcement agencies.
Conservatives well know a government bureaucracy’s appetite for power is never sated. Left unchecked, it will push the limits, mindless of the cost to our own freedom.
Already, there is an effort in Congress to remove the existing sunset provisions to the Patriot Act, though a 2003 Government Accounting Office report questioned whether the Act’s powers were being misused to fight not terrorism but run-of-the-mill crime.
Most Americans are unlikely to find themselves part of an investigation involving terrorism. But they should know these new “tools” already are creatively used by U.S. attorneys from one end of the country to the other to investigate very ordinary criminal acts. Citizens don’t realize the privacy and constitutional safeguards they once took for granted already are being eroded.
There are those who perhaps overstate the threat, but that doesn’t mean it isn’t real. That’s why Congress should draw the line between the “tools” law enforcement really needs and those in the law enforcement bureaucracy would simply like to possess. At the very least, Congress should resist the temptation to automatically approve the enforcement sector’s newest requests without at least ascertaining it really needs the powers it already has and is using them as Congress believed they would be used when they were approved.
Paul M. Weyrich is chairman and chief executive officer of the Free Congress Foundation. David Keene is chairman of the American Conservative Union.