We're Losing Our Civil Liberties for Nothing

The actual front page headline in the May 30 New York Times was "F.B.I. Chief Admits 9/11 Might Have Been Detectable." But it could just as easily have been "White House Confesses: We're Losing Our Civil Liberties Needlessly."

Last September, Attorney General John Ashcroft demanded that Congress give him unparalleled powers of surveillance and detention.

"Law enforcement tools created decades ago were crafted for rotary telephones, not e-mail, the Internet, mobile communications and voice mail," he told lawmakers. "I regret to inform you that we are today sending our troops into the modern field of battle with antique weapons."

A supine Congress gave him virtually everything he wanted.

Now we know that the FBI's "antique weapons" worked remarkably well, at least at the field level. In July 2001, Phoenix FBI Agent Ken Williams warned that Osama bin Laden might be sending operatives to American aviation schools to prepare for terrorist operations. He recommended that headquarters investigate all flight schools. The request was denied.

In Minneapolis Zacarias Moussaoui was arrested after the manager of a local flight school told FBI agents he appeared interested only in learning how to fly a large plane, not how to land it. The field office asked headquarters for permission to investigate Moussaoui further, including a request for a warrant to search his computer. The request was denied.

The problem wasn't a lack of surveillance and detention powers. The problem, as the Washington Post reports that FBI Director Robert Mueller has acknowledged "is the FBI's limited ability to gather and analyze intelligence".

That flaw should be fixed. But the strategy of this Administration since 9/11 has not been to remedy that weakness but instead to radically expand the invasive powers of government.

Both left and right are worried.

Brian Doherty writes in Reason Magazine, "Maybe Attorney General John Ashcroft isn't the greatest threat to individual liberty since the Inquisition. But that doesn't mean he hasn't been alarming so far." Laura Murphy, director of the ACLU's Washington office observes, "There is no proof that the incessant seizure of new powers by Congress and the Bush administration does anything to increase safety."

Most disturbingly, perhaps, is that we now know that Ashcroft read Agent Williams' memo a few days after Sept. 11. He knew then that the existing surveillance system, despite having to honor constitutional safeguards of due process and against secret detention, secret hearings and unlimited wiretapping, had generated information which, if acted on, might well have prevented the attacks.

Yet even with that knowledge, Ashcroft went to Congress and asked for drastically new invasive authority. And he famously warned those who worried about the loss of liberty that they were, in essence, traitors. "Those who scare peace-loving people with phantoms of lost liberty ... only aid terrorists."

Ashcroft's "phantoms of lost liberty" have become very, very real. Hundreds of people have been taken into custody. The government still refuses to reveal their names or the charges against them. Since December, at least 16 lawsuits have challenged the legitimacy of the Justice Department's actions. So far, five opinions have been issued, the most recent the day FBI Director Mueller made his public mea culpa. All conclude that the government is violating basic constitutional rights. The Department has appealed the first four adverse rulings and will undoubtedly appeal the most recent one as well.

On April 30, District Judge Shira Scheindlin ruled that the government had misused the material witness statute which allows the detention of material witnesses for trial, but not for grand jury investigations. The former federal prosecutor wrote "since 1789, no Congress has granted the government authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation."