Washington Post Editorial
October 26, 2001

A Panicky Bill

BY OVERWHELMING majorities, both houses of Congress have now passed legislation giving the government greater latitude to monitor communications and otherwise pursue and detain suspected terrorists. Leaders of the effort were celebrating the complex bill's enactment yesterday as a major bipartisan accomplishment and great success that, not incidentally, redounded to their credit. Our contrary view is that the rapid passage represents a failure of the legislative process which, in the long run, the country is likely to regret. The measure contains some worthy provisions. But parts of it also infringe unnecessarily on civil liberties. They could and should have been excised; the bill would still have been sufficient. But Congress lost its nerve.

The legislation submitted by the administration was improved in the legislative process, but not enough, and some of the improvements were then junked before the final votes. Members with reservations feared objecting lest there be a further terrorist attack and they be blamed for having failed to give the government the means to prevent it. The House Judiciary Committee carefully wrote and unanimously approved a relatively balanced bill to which the administration objected. The night before it was to be voted on, the Republican leadership bowed to administration wishes and replaced it with a "compromise" that members were then called upon to approve, for the most part not having read. Senate Judiciary Committee Chairman Patrick Leahy said by way of self-congratulation the other day that Congress did the administration a favor by amending the bill. What Sen. Leahy and others who knew better really did was cave with the job half done.

The administration had sought the power to detain indefinitely noncitizens on mere suspicion of terrorist or other activity thought to endanger national security. That power was greatly hedged, but as a practical matter lengthy detentions with little judicial review remain a possibility. The bill would make it easier for the government to engage in wiretapping by, in effect, lowering the standard of judicial review. It's not clear that's necessary. It would authorize so-called sneak-and-peek searches in which the government could search a person's home or office and leave without letting the person know. It would allow much wider distribution of sensitive law enforcement and intelligence information within the government, which is doubtless useful but ought not occur in at least some cases without advance approval of the courts, which the bill does not require. It would give the CIA a role in domestic surveillance. A sensible two-year limit on some of the powers in the bill was unwisely extended at administration insistence to four years and possibly longer.

One of the mysteries of the bill is why it reduces the healthy oversight of the courts at critical junctures. Have they, and the constitutional standards they enforce, really stood in the way of law enforcement? This is panicky legislation that, in seeking to reduce one set of dangers, unnecessarily creates another.

Copyright 2001, Washington Post Company. All rights reserved.

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