Civil Liberties Matter

By Camille Dodero, Boston Phoenix. Posted October 2, 2001.

More than anything else, we want to feel safe right now.

We want the Federal Bureau of Investigation — widely seen as a corrupt organization a mere three weeks ago — to have every tool it needs to stop terrorists from attacking this country again. We want the Central Intelligence Agency — never a friend of progressives — to have the latitude it needs to stop Islamic-fundamentalist terrorists from getting into the United States. And many of us, in our desperate desire to feel secure, are thinking: what’s the big deal about giving up a little privacy if it means we can avoid another terrorist attack like the one that killed nearly 7000 people on September 11?

We should think again.

The various anti-terrorism measures currently under consideration on Capitol Hill — particularly Attorney General John Ashcroft’s Anti-Terrorism Act — will not make us safe again. In fact, they could do just the opposite by diminishing our civil liberties in ways we’ve yet to imagine.

Consider the following:

• Ashcroft’s bill would give the FBI unfettered ability to monitor our computer use. Via a program called " Carnivore, " which is placed on the Internet service provider of someone under surveillance by the FBI, the agency gets easy access to the e-mail addresses written to, Web sites visited by, and Internet searches conducted by every user on the network. What’s interesting is that the FBI already has this capacity, only the agency can’t use it unless it gets a wiretap order from a judge. Ashcroft’s bill would eliminate that step. The other notable detail about this piece of the anti-terrorism bill: the expanded snooping power would not be limited to investigations of terrorists. It could be used against anyone under suspicion of the FBI. Don’t think the agency wouldn’t use this authority to disrupt or spy on organizers of anti-globalization protests, for example. There would be nothing to stop them.

• Ashcroft’s bill would allow US prosecutors access to information gathered by foreign governments in criminal investigations, even if that information violates Fourth Amendment protections against unlawful search and seizure. This measure in particular has received a lot of press attention. And it’s been spun to make us think that such evidence would be used only in investigations of terrorists, or of foreign citizens living in the United States who might be engaged in terrorist activities. But that’s not the reality.

The bill doesn’t limit this provision to investigations of suspected terrorist activity. In fact, a section-by-section analysis of the proposed legislation conducted by the Department of Justice and dated September 19 (it can be read online at http://www.eff.org/Privacy/Surveillance/20010919_doj_ata_analysis.html) explains the true purpose of this particular provision: " To ensure uniformity of federal practice, this section codifies the principle that United States prosecutors may use against American citizens [emphasis added] information collected by a foreign government even if the collection would have violated the Fourth Amendment. " Does anyone really think foreign governments would be able to provide US prosecutors with information about homegrown terrorists such as Timothy McVeigh or Ted Kaczynski? This provision is not about fighting terrorism. It’s about giving the FBI a way to get around the Fourth Amendment in any criminal investigation, pure and simple.

• Ashcroft’s bill would allow the creation of a DNA database of everyone convicted of any felony or certain sex offenses. There can be no doubt that this provision has nothing to do with fighting terrorism.

The truth is that Ashcroft and the other sponsors of the various anti-terrorism measures can’t point to additional weapons for the nation’s law-enforcement agencies and say, " If we had had these measures in place, the September 11 attacks never would have happened. " But there are some laws already on the books that we can point to and say, " If these laws had been enforced, the September 11 attacks might have been prevented. " At least two of the suspected terrorists, Khalid al-Midhar and Salem Alhamzi, who hijacked the plane that was flown into the Pentagon, were on the CIA’s terrorist watch list. Now that we know how easily the September 11 terrorists entered this country and how long they were able to operate without detection, we will undoubtedly want many changes: heightened airport security, more-thorough background checks of would-be visitors, closer supervision of those with temporary visas. But such actions can be undertaken within our existing civil structures.

As for the proposals in Ashcroft’s bill, it’s " stuff that’s been circulating for years and is sort of a law-enforcement wish list, " says Shari Steele, the executive director of the Electronic Frontier Foundation, an organization that promotes civil-liberties protections in the technology arena. To pass Ashcroft’s Anti-Terrorism Act — or anything like it — would be a huge mistake.

Not that we haven’t made these sorts of mistakes before. As Dan Kennedy and Harvey Silverglate point out this week ( " How the Terrorist Crisis Threatens Our Personal Liberties"), the United States has a long history of passing restrictive legislation in wartime. During the Civil War, President Abraham Lincoln suspended the right of habeas corpus. During World War I, A. Mitchell Palmer, President Woodrow Wilson’s attorney general, raided the offices of leftist organizations and deported foreigners. During World War II, President Franklin Delano Roosevelt approved the internment of Japanese-Americans. During the 1950s era of the Cold War, Senator Joseph McCarthy conducted extensive anti-Communist witch hunts.

In our fear of terrorism, we could repeat history. During the Civil War, Lincoln memorably asked: " Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence? " In our fear — a fear previously unknown to any American too young to have lived through the attacks on Pearl Harbor — we might favor the former. But that would take away our essential liberties as American citizens — the rights that make this country unlike any other on the globe.

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