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Liberties lost
Unintended consequences of the anti-terror law
By John W. Dean
MSNBC CONTRIBUTOR
Oct. 26 — When President Bush signed the sweeping new anti-terrorism
legislation into a law, providing federal law enforcement officials
with powerful new weapons to more effectively fight terrorism, he
proved Supreme Court Justice Sandra Day O’Connor prescient. A little
less than a month earlier, Justice O’Connor advised a law school
audience in Manhattan that as part of the country’s response to
terrorism, “we’re likely to experience more restrictions on our
personal freedom than has ever been the case in our country.”
WHILE THIS NEW anti-terrorism law was certainly not designed
to take away civil liberties of Americans, its unintended
consequences threaten fundamental constitutional rights of people who
have nothing to do with terrorism. The well-meaning but careless
exuberance of our lawmakers is alarming.
A ‘HIGH-FLYING ACRONYM’
More attention appears to have been given finding a title for
the new law than the substance of its provisions. The “Uniting and
Strengthening America by Providing Appropriate Tools Required To
Intercept and Obstruct Terrorism Act,” as Rep. Barney Frank, Democrat
of Massachusetts, noted during the House debate, is a truly “high-
flying acronym, it is the PATRIOT bill, it is the USA bill, it is the
stand up and sing the ‘Star Spangled Banner’ bill.”
What's the most likely effect of the anti-terrorism bill?
It will help the federal government track down and jail foreign
terrorists now within the United States.
It will be used against U.S. citizens to ransack their homes, offices
and e-mail.
It will lead to some innocent people being detained for a time but
will also help foil would-be terrorists.
Vote to see results
It is also a law, Frank lamented, that was processed by
Congress “in the most undemocratic way possible, and it is not worthy
of this institution.”
No hearings were held in either the House or Senate on the USA
PATRIOT Act, and few — if any — members of Congress were really aware
of what was actually in this massive, complex, highly technical
30,000-word statute, which is divided into ten titles, with more than
270 sections and endless subsections that cross-reference and amend a
dozen, or more, different laws.
There is a concept in the legislative process called “regular
order.” It is the time- tested procedure to make certain that our
laws are carefully considered. The USA PATRIOT Act was jammed through
the House and Senate, with those calling for regular order being
labeled unpatriotic. In fact, the 66 Republicans and Democrats in the
House and the one member of the Senate who refused to be railroaded
believed that law enforcement officials should have the tools needed
to fight terrorists, but they should not be created at the expense of
basic American freedoms.
RIGHT TO DISSENT AT RISK
The reach of this new law is far beyond those who appear
involved in the Sept. 11 attacks. The USA PATRIOT Act adds a new, and
fourth, definition of “domestic terrorism.” In doing so, they have
made many home-grown political activists that have protested their
opposition to the programs of the World Trade Organization on the
streets of Seattle and Washington into terrorists.
Home-grown political activists who protested against the
globalization on the streets of Seattle and Washington would be
considered terrorists under this new law.
While only fellow anarchists approve of the violence that has
accompanied the anti-globalization protestors, sweeping these people
into the same law that deals with the followers of Osama bin Laden is
uncalled for, and confuses the efforts to fight terrorism.
The American Civil Liberties Union has called attention to
civil rights and liberties jeopardized by the new law. While Congress
addressed some of the constitutional concerns raised by the ACLU and
other organizations, many more were ignored. The debate on the law is
replete with admissions by its sponsors that it is “less than
perfect.”
To obtain the support of lawmakers with reservations about
these new invasions of privacy, in particular the provisions giving
the federal government new powers to wiretap telephones and rummage
through voice-mail and e-mail of all Americans when looking for not
only terrorists but other criminals as well, the provisions were
adopted as temporary law. Concerns were assuaged with the argument
that these bold — some say dangerous — new provisions will expire in
four years, unless Congress renews them. Adding a “sunset” clause,
however, does not make the provisions constitutional.
DUBIOUS CONSTITUTIONALITY
The legal impact of the war on terrorism
Among the provisions of dubious constitutionality are the new
“sneak-and-peek” search warrants that permit federal law enforcement
agencies to enter any person’s home or office when they are away to
search their property, make photos of what they find, and even seize
the items, and never tell the person until after the search and
seizure has been accomplished. The U.S. Supreme Court has never ruled
on whether these sneak-and-peek searches violate the Fourth
Amendment, which requires notice be given people who are searched.
Notice enables citizens to make sure law enforcement has the right
address, not to mention a legitimate reason to invade their home or
office.
Since the tragic events of Sept. 11, law enforcement officials
have visited over 200 colleges and universities gathering information
about students, particularly foreign students, but Americans as well.
While the USA PATRIOT Act requires a court order for such records, it
is more of a rubber stamp than a protection of student privacy, for
the court must authorize the activity based on a mere certification
by the law enforcement agency that they need the information. There
is no requirement of good cause, nor any real judicial review.
Provisions for detaining immigrants, sharing grand jury
information with intelligence agencies, new restrictions on money
laundering, and covert “black bag” searches push the law to the
limits of perceived constitutionality. Many argue that the new
wiretap provisions are blatantly unconstitutional.
BROAD NEW POWERS
Adding a “sunset” clause does not make the provisions of this law
constitutional.
The new wiretap law — which has been written to apply to more
than terrorism investigations — makes it much easier for the
government to get a wiretap, with less involvement of federal judges
in the process. Also, federal authorities can now engage in
aggressive Internet surveillance, under the pretext of looking for
terrorist activities. Typical of the broad powers granted by the new
law are those that enable federal agents to track e-mail. Nothing in
the new law prevents fishing expeditions. Rather, if the federal
agents certify that tapping into the Internet for an e-mail address
is necessary for an ongoing criminal investigation, the court must
grant the authority. While the new law does not permit federal agents
to so easily obtain the contents of the e-mail, since the e-mail
address and contents of the message travel together in electronic
packets, the FBI has taken the position that they can be trusted to
look only at the address and ignore the e-mail messages. Remarkably,
Congress bought this argument.
REHNQUIST’S ROLE
So, too, did Congress accept the Department of Justice’s
argument about the justification for new wiretap authority. It was an
argument that Nixon’s Attorney General John Mitchell had used to
justify the widespread wiretapping plans of the Nixon Administration.
Attorney General Ashcroft’s Justice Department claims “As the
commander-in-chief, the president must be able to use whatever means
necessary to prevent attacks upon the United States; this power, by
implication, includes the authority to collect information necessary
for its effective exercise.”
Remarkably, the U.S. Supreme Court basically rejected this
argument on June 19, 1972 in the so-called Keith case — a decision
rendered two days after the Nixon- sponsored burglars were arrested
trying to wiretap the Watergate offices of the Democratic National
Committee. Here we are almost 30 years later, and recycled Nixonian
rationale is being used once again. It will be recalled that Nixon
and Mitchell believed that the ends justified the means. We are
hearing similar assertions for dealing with terrorism.
‘The laws will not be silent in time of war, but they will speak with
a somewhat different voice.’
— CHIEF JUSTICE WILLIAM REHNQUIST
The Keith decision was unanimous, with eight justices
unwilling to buy the argument that the president had such inherent
powers. One justice did not participate, William Rehnquist, because
he had helped the Nixon Justice Department fashion its argument.
Should this, and the other constitutional issues, reach the high
Court again, not only will Chief Justice Rehnquist participate, you
can be assured he will vote in favor of the government.
But there is good reason to believe that Rehnquist will do all
within his power to keep the high court out of these matters so long
as the war on terrorism is being conducted by the government. For
years, Rehnquist has been writing and giving speeches about civil
liberties in wartime. Based on his study of civil liberties during
the American Civil War, and World Wars I and II, he finds truth in
the ancient legal maxim: Inter arma silent leges — “In times of war
the laws are silent.” Indeed, he asks “whether in every case a ruling
in favor of a claimed civil liberty is more desirable, more ‘just,’
that a contrary result.”
Advertisement
The Rehnquist Choice: The Untold Story of the Nixon Appointment That
Redefined the Supreme Court by John W. Dean
Rehnquist has noted that the “Constitution has not greatly
bothered any wartime President.” Presidents and Congress push their
authority to do what is necessary to win a war. And he finds that
courts are reluctant to involve themselves in the war efforts of the
Executive branch. In his 1998 book, “All the Laws But One: Civil
Liberties in Wartime,” the Rehnquist reached conclusions that answer
most questions about the fate of the civil liberties that may be lost
under the USA PATRIOT act:
“It is neither desirable nor is it remotely likely that civil
liberty will occupy as favored a position in wartime as it does in
peacetime. But it is both desirable and likely that more careful
attention be paid by the court to the basis for the government’s
claims of necessity as a basis for curtailing civil liberty. The laws
will not be silent in time of war, but they will speak with a
somewhat different voice.”
Should the constitutionality of the USA PATRIOT Act ever come
before the U.S. Supreme Court, there is no doubt in my mind what one
voice will say. When working on my own book about Rehnquist, I found
that the chief justice has evidenced a highly consistent legal
philosophy. And he has never found an aggressive law enforcement
measure of which he did not approve. I doubt he would find any of the
USA PATRIOT Act’s provisions unconstitutional.
Former White House Counsel John W. Dean is a regular contributor to
MSNBC.com. He is the author of “Blind Ambition,” and, most recently,
“The Rehnquist Choice: The Untold Story of the Nixon Appointment that
Redefined the Supreme Court.” His legal analysis appears biweekly on
www.FindLaw.comand he is at work on a television docudrama, “The
Pentagon Papers.”
End<{{{
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