ATTORNEY GENERAL John Ashcroft, in a disastrous post-Sept. 11 move that could usher in a new era of illegal surveillance and government persecution of dissidents, is rewriting longstanding restrictions on domestic spying by law enforcement agencies.
His decision rewards analytical failure with new powers and threatens core civil liberties guaranteed under the Constitution and Bill of Rights. It also demonstrates his seemingly insatiable appetite for new powers that will do little to make us safer but will inevitably make us less free.
Congressional testimony last week by FBI Agent Coleen Rowley revealed that security failures did not occur because the FBI had too little information about possible terrorists. The FBI already has the operational freedom and authority to gather the information it needs to do its job.
Rather, the flaw was in the FBI's inability to properly analyze the mountains of information it collects and to act on relevant information. Yet the attorney general's response to that failure is to gather exponentially more information. The government is giving itself broad new powers rather than investigating why failures occurred.
By rewriting the original 1976 "Attorney General Guidelines," Mr. Ashcroft also dismantles a central protection against government fishing expeditions by ending the requirement that law enforcement agencies have at least a scintilla of evidence -- or even a hunch -- of a crime before engaging in certain investigative activities. Under the new guidelines, FBI agents can make it their business to infiltrate mosques, churches and synagogues and other houses of worship and to listen in on online chat rooms, even if it has no evidence that a crime might be committed.
The new rules are invasive both in kind and duration.
For instance, the FBI will purchase information from commercial data mining companies to use in determining whether citizens warrant terrorism investigations. Do we really want the FBI to rely on the same profile information (credit card use, department store purchases, E-ZPass toll payments and the like) used by spammers to determine whether we may be interested in various sex devices, refinancing our homes or making $1 million in our spare time?
The new guidelines also vastly expand the length of time that the FBI may continue to conduct these far-reaching preliminary and full investigations on private citizens. Investigations thus become fishing expeditions even when there is no reasonable indication that anyone is breaking the law.
Beyond these invasions of privacy, the American Civil Liberties Union is equally concerned with what the FBI does with all this information.
In the past, the FBI used its investigative authority to collect political intelligence for use against political enemies. The guidelines at issue were originally adopted after the FBI spied on and persecuted the Rev. Martin Luther King Jr. and other political dissenters from the 1950s through the 1970s.
The Justice Department's 1976 guidelines limited the scope of acceptable surveillance and infiltration of religious and political organizations. They required a connection to crime in order to rein in fishing expeditions and harassment of political enemies -- activities that resulted in wasted manpower and showed little results.
The Reverend King's legacy is not just the gains made toward political and social equality. His persecution by law enforcement is a reminder of the potential abuse when a government with too long a leash seeks to silence voices of dissent.
The Bush administration seems determined to undermine the bedrock values of liberty, equality and government accountability on which the nation was founded.
These new guidelines are just the latest in an array of new powers that the government has granted itself since Sept. 11, including the administration's ongoing stonewall approach to ACLU questions about the hundreds of Sept. 11 detainees still being held in facilities nationwide, the newfound impetus behind national ID card proposals on Capitol Hill and the passage of the USA PATRIOT Act and its implementation. Most do little to make us safer yet substantially erode civil liberties in America.
America stands at a crossroads. We can either continue to erode freedom or we can accept the reality that safety and liberty are not mutually exclusive and can coexist.
Susan Goering is executive director of the ACLU of Maryland.