It's Only the Constitution

By Nat Hentoff, The Progressive. Posted December 5, 2001.

"Precisely because the need for action against the scourge is manifest, the need for vigilance against excess is great. The first, and worst, casualty will be the precious liberties of our citizens."

-- Justice Thurgood Marshall

Two nights after the September 11 attack, the Senate swiftly, by voice vote after thirty minutes of debate, attached to a previously written appropriations bill an amendment making it much easier for the government to wiretap computers of terrorism suspects without having to go to various courts to get multiple search warrants. The bipartisan bill was introduced by Senator Orrin Hatch, Republican of Utah, and Dianne Feinstein, Democrat of California. "Terrorism" was not defined.

That was the beginning of the steamroll. Now Attorney General John Ashcroft has gotten his way with his originally titled Anti-Terrorism Act of 2001, which coolly contradicted the earnest assertions of the President and the Secretary of Defense that necessary security measures would not violate our fundamental liberties because our freedom is what we are fighting for. The final legislation passed the Senate on October 25 by a vote of 98 to 1, with only Russ Feingold, Democrat of Wisconsin, dissenting. In the House, the bill passed 356 to 66.

The new law will permit government agents to search a suspect's home without immediately notifying the object of the search. In J. Edgar Hoover's day, this was known as a "black bag job." The FBI then never bothered to get a search warrant for such operations. Now, a warrant would be required, but very few judges would turn a government investigator down in this time of fear. Ashcroft's "secret searches" provision can now extend to all criminal cases and can include taking photographs, the contents of your hard drive, and other property. This is now a permanent part of the law, not subject to any "sunset" review by Congress.

Ashcroft also asked for roving wiretaps -- a single warrant for a suspect's telephone must include any and all types of phones he or she uses in any and all locations, including pay phones. If a suspect uses a relative's phone or your phone, that owner becomes part of the investigative database. So does anyone using the same pay phone or any pay phone in the area.

Ashcroft neglected to tell us, however, that roving wiretaps already became law under the Clinton Administration in 1998. At that time, only Congressman Bob Barr, Republican of Georgia, spoke against it in Congress, while the media paid little attention to this brazen attack on the Fourth Amendment.

But Ashcroft demanded and received a radical extension of these roving wiretaps: a one-stop national warrant for wiretapping these peripatetic phones. Until now, a wiretap warrant was valid only in the jurisdiction in which it was issued. But now, the government won't have to waste time by having to keep going to court to provide a basis for each warrant in each locale.

The expansion of wiretapping to computers, and thereby the Internet, makes a mockery of Internet champion John Perry Barlow's 1996 "Declaration of the Independence of Cyberspace":

"Governments of the industrial world, on behalf of the future, I ask you of the past to leave us alone. . . . You have no sovereignty where we gather . . . nor do you possess any methods of enforcement we have true reason to fear. Cyberspace does not lie within your borders."

This government invasion of cyberspace fulfills the prophecy of Justice Louis Brandeis, who warned, in his dissent in the first wiretapping case before the Supreme Court, Olmstead v. United States (1928): "Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home."

This has come to pass. The government now has access to bank records, credit card purchases, what has been searched for on the Internet, and a great deal more for those who have "supported," or are suspected of, terrorism.

Moreover, as Brandan Koerner, a fellow at the New America Foundation, has pointed out in the Village Voice, the bill that Congress passed so hastily on the night of September 13 -- and is now part of the law -- "lowers the legal standards necessary for the FBI to deploy its infamous Carnivore surveillance system." Without showing -- as the Fourth Amendment requires -- probable cause that a crime has been committed or is about to be committed, the government invades what's left of your privacy.

The fearful name "Carnivore" disturbed some folks, and so it has been renamed DCS1000. Carnivore, Koerner notes, is "a computer that the Feds attach to an Internet service provider. Once in place, it scans e-mail traffic for 'suspicious' subjects which, in the current climate, could be something as innocent as a message with the word 'Allah' in the header." Or maybe: "SAVE THE FOURTH AMENDMENT FROM TYRANTS!" Carnivore also records other electronic communications.

There was resistance to the assault on the Bill of Rights. In Congress, such previously unlikely alliances between Maxine Waters and Bob Barr, Barney Frank and Dick Armey, helped hold back Ashcroft's rush to enact his anti-terrorism weapons within a week, as he had demanded. In the Senate, Patrick Leahy, chairman of the Judiciary Committee, also tried to allow some deliberation, but Majority Leader Tom Daschle usurped and undermined Leahy's authority. Leahy ultimately caved and declared the law signed by Bush on October 26 "a good bill that protects our liberties.

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