Anti-terrorism act imperils liberties

October 30, 2001|By Susan Goering

IF, AS OUR nation's leaders say, the Sept. 11 terrorist-inflicted carnage was an attack on freedom and we are now fighting a war for freedom, then we ought to be wary of sacrificing our civil liberties on the altar of security. If we do, the terrorists will have won.

Fortunately, we can be both safe and free, if our leaders are mindful.

Unfortunately, President Bush and Congress have just succeeded in unnecessarily imperiling civil liberties with passage of a controversial administration-sponsored anti-terrorism act.

To be sure, we needed to make some changes to improve security. Many recently enacted airport security measures are warranted, and the American Civil Liberties Union supported them.

But passage of the U.S.A. Patriot Act gives the government new and unchecked powers that can be used against Americans who are not under criminal investigation, immigrants who are within our borders legally and those whose First Amendment activities are deemed by the attorney general to be threats to national security.

The bill goes light years beyond what is necessary to combat terrorism and includes provisions that would allow for the mistreatment of immigrants, the suppression of dissent and the investigation and surveillance of wholly innocent Americans. Indeed, most of the new powers could be used against American citizens in routine criminal investigations completely unrelated to terrorism.

Of perhaps greatest concern is the lack of meaningful judicial review - a bedrock civil liberties safeguard.

Have we forgotten that our Constitution's framers were themselves fighting a war when they insisted that before government agents could "search or seize" homes, property or people, a judge must determine there is probable cause to justify the liberty intrusion? Judicial review is an indispensable shield against misguided or overzealous agents, and it does not impede effective crime-fighting. Historically, judges rarely refuse warrant requests.

Though the administration claimed to include judicial review in the bill, in fact judges become mere rubber stamps, without authority or means to curb abuses.

Under the new law, there is no meaningful judicial review before federal agents examine Internet usage histories; access, use and disseminate sensitive educational, banking, credit, consumer and communications records; conduct "sneak and peek" searches, in which agents enter homes and offices, take photos and download computer files before notifying the owners; and indefinitely detain hundreds of non-citizens whether or not they are here legally.

And the new surveillance powers can be used against not just foreign nationals but also Americans. A new crime, "domestic terrorism," could be used to investigate World Trade Organization protesters, Operation Rescue and the Earth Liberation Front. And, to top it off, the bill expands CIA authority to engage in domestic spying.

How the bill is implemented becomes the next battleground, and the ACLU will be keeping a close eye on how these new powers are used by the administration. Of special concern is Attorney General John Ashcroft's apparent gusto to implement certain provisions in the bill that threaten liberty.

In an unusually combative speech at the U.S. Conference of Mayors last week, he promised to begin aggressively using the sweeping new law enforcement powers included in the bill immediately after President Bush signs it into law.

In his speech, Mr. Ashcroft vowed that the "hour that [the anti-terrorism bill] becomes law, I will issue guidance to each of our 94 U.S. attorney's offices and 56 FBI field offices directing them to begin immediately implementing this sweeping legislation." He said the bill would open a "law enforcement campaign."

Against the backdrop of this legislation, Benjamin Franklin's warning of long ago resonates hauntingly: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Thomas Jefferson reportedly added that those who trade liberty for safety will eventually lose both.

Susan Goering is executive director of the American Civil Liberties Union of Maryland, based in Baltimore.

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