Washington Post Editorial
October 3, 2001


An Improving Anti-Terror Bill


CONGRESS CONTINUES, wisely, to refuse to be stampeded into abandoning civil liberties in the anti-terrorism bill that the administration hastily pulled together and sent up two weeks ago. The process in both houses has been impressively bipartisan, with only a couple of exceptions.

The emerging compromise is not yet where it ought to be, but is headed in the right direction. Attorney General John Ashcroft continues implicitly to flog Congress for engaging in the balancing act that should have been his responsibility but that he skipped past. He warns of the possibility of further terrorist activity, which we have no doubt is real. The implication is that if it occurs it will be partly the fault of those who insist on modifying this bill. Sen. Orrin Hatch, former chairman of the Senate Judiciary Committee, has been similarly engaged. But the drum-beaters make no showing that the bill's objectionable provisions would serve to prevent the possibility they so loosely invoke. It's not clear that some of the powers they seek would be a clear gain for law enforcement, much less that the possible gain would be worth the serious civil liberties loss.

In the House, Judiciary Committee Chairman James Sensenbrenner and ranking Democrat John Conyers, two senior figures rarely allied, have worked together to produce a compromise bill now being shopped among their members. It retains worthy provisions from the administration's bill. For example, it would let the government seek court approval to place a wiretap not just on a particular phone but on a person regardless of which phone he might use.

But the compromise would alter other, troublesome provisions. The administration sought the power to detain indefinitely without judicial review any alien whom it suspected might be engaged in terrorist or other activity that could endanger national security. The Sensenbrenner-Conyers draft would hedge that -- tighten somewhat the standard for such detention, limit the duration, provide for review -- and the draft contains a sunset provision under which this and most of the other extraordinary powers in the bill would expire after two years. That's progress, but indefinite detention with little prospect of review would still be possible under certain circumstances; the language needs work.

The bill was similarly improved in other areas, having to do with wiretapping and the use of intelligence information in law enforcement. The standard for gathering intelligence is rightly looser than the eavesdropping standard in law enforcement; the two need to be kept distinct. But here too, and in such other areas as the underlying definition of terrorism and the standard the government should have to meet to examine e-mail, the bill can benefit from further review. This is a bill that is full of risks, in both directions. The Senate and House both need to take enough time to get it right.

Copyright 2001, Washington Post Company. All rights reserved.

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