Houston Chronicle
October 7, 2001

Experts Fear Net Ensnarls Liberties


WASHINGTON -- To fight the new war on global terrorism, Attorney General John Ashcroft wanted the power to jail immigrants indefinitely -- without charges and without taking them before a judge.

Congress said no.

He wanted to force universities to turn over personal information about foreign students, and he wanted the authority to secretly search people's homes.

Again, Congress said no.

But as lawmakers vote this week on a scaled-back version of the Bush administration's anti-terrorism package, civil libertarians from the left and right warn that Americans still face an unprecedented invasion of privacy that won't necessarily make them any safer than they were Sept. 11.

"This legislation is moving through Congress very rapidly, and we need to be careful," said Nadine Strossen, national president of the American Civil Liberties Union.

"If this bill passes as written, it will affect absolutely everybody in this country who uses a telephone or a computer," she said. "It will threaten our most basic constitutional rights against unreasonable search and seizure, and it will have a chilling effect on our rights to free speech and free association."

The legislation, dubbed The Patriot Act, seeks to rewrite U.S. law to help authorities track down those responsible for the Sept. 11 terrorist attacks on the East Coast that left about 5,500 dead.

Because the hijackers worked from inside the United States, taking flying lessons at U.S. schools and communicating with each other via cell phones and the Internet, the federal government is seeking the authority to cast a wide net to round up anyone who might be deemed a terrorist.

Already, authorities have detained hundreds of people for questioning, targeting many only because of their ethnic or religious backgrounds, and investigators say they need more leeway to complete their work.

Ashcroft, complaining last week that lawmakers were not moving quickly enough, said the nation's security is at stake. Public opinion polls tend to support the administration, with most Americans saying they are willing to put up with some infringement of their privacy rights if their safety can be improved.

"All of America understands the need for us to be responsible about equipping law enforcement officials with the tools that are necessary to disrupt, to anticipate, to interrupt, to prevent additional terrorist acts," Ashcroft said.

Last week, the House Judiciary Committee unanimously approved compromise legislation, allowing a modest increase in the amount of time immigrants can be detained without charges -- from two days to seven. It also expanded the government's wiretapping and surveillance authority to include cell phones and computer communications, but set a December 2003 expiration date on the new powers.

The bill is set for a vote on the House floor this week, and the Senate is working on similar legislation.

Strossen, who is also a constitutional law professor at New York Law School, as well as other civil liberties experts, said they worry most that:

ˇExpanded surveillance could invade people's privacy and erode Fourth Amendment protections against unreasonable search.

ˇThe vague definition of "terrorist" could threaten First Amendment rights to free speech and free association, as membership in a group or financial support of it could become suspect.

ˇRacial or religious profiling would make innocent people scapegoats.

ˇAmericans subjected to more rigorous inspections at airports and other public places may be lulled into a false sense of security while little is done to address real threats.

"No one has pointed to the absence of the powers the government is now seeking as a reason why we missed the September 11 attacks altogether," said David Cole, a law professor at Georgetown University Law Center. "And no one is suggesting that having these powers will help us prevent further attacks. What is certain is that these laws could ensnare many innocent people."

And just as the terrorist attacks shocked the world into new alliances between former enemies, the civil liberties debate has placed on the same team an unlikely group of liberal Democrats and conservative Republicans.

"It's not every day that I am agreeing with (Rep.) Bob Barr (R-Ga.), or (House Majority Leader) Dick Armey (R-Irving)," said Ralph Neas, president of the liberal People for the American Way.

"Some of our most passionate opponents on other issues agree with us on this," he said. "We all want people to rally around the president and Congress to make sure the perpetrators of this heinous act are brought to justice. But we should not use this bill as an opportunity to bootstrap a lot of other law enforcement measures that Congress refused to pass, for good constitutional reasons, in previous years."

Armey said the debate is "about how we equip our anti-espionage, counterterrorism agencies with the tools they want while we still preserve the most fundamental thing, which is the civil liberties of the American people."

In times of fear, it's natural to believe extreme measures are necessary to protect ourselves, Cole said, "but in light of our history, we should carefully assess whether these changes are necessary to further our security."

He said that in hindsight, Americans went too far in restricting their own liberties when they allowed the Alien and Sedition Acts of 1798, the World War II internment of innocent Japanese-Americans in U.S. concentration camps after the bombing of Pearl Harbor, and the McCarthy-era witch hunts aimed at suspected Communists. And the courts, he pointed out, initially upheld those policies.

"Already we are indulging in guilt by association, short-circuiting due process procedures and targeting unpopular groups," Cole said. "We need to get a hold of ourselves and resist letting fear force us into actions that could have horrible consequences for years to come."

Under current law, for example, telephone eavesdropping is permitted without a search warrant if law enforcement believes it is relevant to an investigation. But the wiretapping is allowed only on a particular telephone, such as a suspect's home phone.

Under the new bill, wiretapping would follow the person rather than the telephone, so that any phone he uses could be tapped, collecting information not just on the suspect, but on anyone else who might use those phones.

The bill also would expand surveillance to computer communications, allowing investigators to track suspects' e-mail as well as what they look up on the Internet.

The problem, Strossen and others said, is that existing technology doesn't allow investigators to eavesdrop on an individual computer user, or even on an individual computer. Instead, they have to work through Internet providers to capture all the e-mail addressing information and Internet activity of every customer.

Of course, the government has nowhere near the manpower to scrutinize most of that information. But civil liberties advocates say that's beside the point. They argue that just collecting the information is an unconstitutional invasion of privacy that could set a precedent for future abuse.

"Every time the government says, `Trust us. We won't abuse our powers or misuse this information,' we have examples where they have collected information on innocent people and misused it," Strossen said.

And because the legislation's definition of a terrorist is whomever the government labels a terrorist, civil libertarians fear that innocent people could become suspect just for ordering a book from Amazon.com to educate themselves about suspected terrorist Osama bin Laden, or for donating money to a Muslim humanitarian aid organization.

Under the bill, Strossen said, the government can deem any political organization a terrorist organization if any of its members have threatened or committed violence against a person or property. Peaceful anti-abortion advocates could be lumped together with radicals who bomb abortion clinics. Animal-rights advocates could be targeted if a member of their group lobs a tomato at the commissioner of agriculture, Strossen said.

Even the newly instituted airport security measures should be looked at closely, Strossen and others said, to determine whether passenger searches should take precedence over securing cockpit doors or restricting runway access or providing better background checks and training of those minimum-wage security agents responsible for keeping bombs and guns off of planes.

The ACLU has not opposed any airport security measures, Strossen said, but as a passenger, she said she was bothered when an agent recently made an issue of a pair of fingernail scissors in her makeup kit.

"To me, that was such a charade when we still have no meaningful background checks on the person who was conducting my search," she said. "Catering crews and baggage handlers have incredible access to our planes, and we still have no luggage matching with passengers, so a terrorist can get a bomb onto a plane and not even get on himself."

But Strossen said she is hopeful that reasonable legislation can be passed, and that the justices on the U.S. Supreme Court will be mindful of history and will defend individual freedom and privacy rights against government intrusion.

She noted that just last term, the court ruled in favor of immigrants' rights, saying the Immigration and Naturalization Service cannot indefinitely detain deportable immigrants whose home countries won't accept them back. In another case, Justice Antonin Scalia, defended the constitutional rights of a man arrested for growing marijuana plants in his garage. Scalia faulted police for failing to get a search warrant before using a heat-sensing device to detect grow lights above the plants.

Since the attacks, Bush also has spoken out on the need to protect civil rights. But he said Americans should recognize that the country is waging a new kind of war that will require new law enforcement tools.

"We're a nation of law, a nation of civil rights," he said. "We're also a nation under attack."

Copyright Š 2001, Houston Chronicle. All rights reserved.

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