Will the War Kill the Bill of Rights?

Will the War Kill the Bill of Rights?
by David Kopel, Fellow, Cato Institute

October 18, 2001

Late last week, Congress hurriedly passed massive "terrorism" bills that had never received committee hearings. Indeed, the House bill was only introduced on the morning that it passed - providing House members with no realistic opportunity to study the bill's tremendous implications. Both the House and the Senate bills grant vast powers to law enforcement that have nothing to do with counter-terrorism.

Because the House and Senate bills differ, a conference committee will be appointed, which will begin meeting very soon.

The House Judiciary Committee had unanimously passed an anti-terrorism bill, which awaited House floor action. But instead of bringing forward the bill that had received committee scrutiny, the House leadership (buckling to pressure from the administration) had a brand-new bill written and brought to the floor of the full House. The leadership moved so hastily that members were deprived of the opportunity even to read the bill before voting on it.

The House bill does include some sensible provisions to help the government fight terrorism, such as expediting the hiring of language translators for counter-terrorism work.

But there are also provisions that seriously infringe privacy, while offering little in the way of counter-terrorism. For example, the bill allows the government, without a warrant, to monitor every e-mail that a person sends and receives. Content access would, however, require a search warrant - although in practice the government would be on the honor system not to read content. Any state, local, or federal law enforcement officer could use the e-mail surveillance. And there is no requirement that this surveillance be connected to a terrorism investigation.

Currently, if the government wants to monitor a person's postal mail, the feds have to get a search warrant. Why should we lower privacy standards because the mail is sent electronically rather than by hand?

The House bill also allows surveillance of a person's Internet surfing. The government can capture the web address of every page that a person views-without a search warrant. This allows any law officer to find out intimate details about a person's politics, hobbies, and even sexual orientation. There is no requirement that this surveillance be related to counter-terrorism.

Significantly, the bill sunsets some (but not all) of the expanded government surveillance provisions after three years. This is a sensible recognition of the fact that the executive branch is asking for extraordinary wartime powers. If the war hasn't ended in three years, Congress is capable of enacting legislation to extend the powers.

The Senate bill-243 pages-is much worse than the House bill. The former's expansions of government power are permanent. Given that the bill will restrict the freedom of people born 50 years from now, it is inappropriate for the bill to be rushed through Congress only a few days after being written.

The Senate bill allows the government to conduct secret searches. This measure is not limited to terrorism cases. Rather, it would apply to federal government searches involving drugs, pornography, gambling, and everything else in the federal criminal code.

The federal government could covertly enter a person's house, copy the contents of his computer, and then break in the next month, and copy the hard disk again. To perform secret searches, the government would merely have to show that there "might" be an "adverse result" if the person found out about the search.

Of all the checks and balances in the Fourth Amendment, the most important is that the person who is searched knows that he has been searched. More so than any other person, he will have the incentive to complain (and, if necessary, to sue) if the search was in violation of the Constitution. Because judges don't come along when the police serve search warrants, judges have no practical way of knowing whether a search is conducted within the limits of the search warrant. In essence, secret searches put federal agents on the honor system.

While the solid majority of federal law enforcement agents are honorable, some are not. And the records of the FBI, the DEA, the ATF, and the rest of the federal law enforcement bureaucracy over the past decades demonstrate that when power can be used, some agents will abuse it.

Both the House and the Senate contain many laudable, and uncontroversial measures, such as providing assistance to the families of police and firefighters who died on Sept. 11. Congress would do better to quickly pass the measures that do not infringe civil liberty, and then take time to ensure that new restrictions on liberty are no broader than necessary, and that they apply only to terrorism investigations.

Let's leave Ben franklin out of it

Sorry. No can do. It is absolutely unbelievable that we are being asked to support legislation voted on that hadn't even been read by those voting. How can they support something they haven't even had the common decency to have read?

My liberty means much more to me than some temporary illusion of "safety". I have no faith that these measures being taken will be used judiciously, because Fedgov and it's many minions never do.

The really unfortunate thing is that there is nothing we can do to regain our freedom folx. It is gone and will not return. Freedom must be jealously guarded or it will be lost. We live in a nation of sheep who bleat and nod their heads in unison whenever Fedgov or its minions tell us &quit;it is for your own good".

I hate this bovine excrement more than I can say. It burns me up because I love what our country stands for and the incredible sacrifices that have been made throughout history to make us the light of the world was apparently for naught. The Constitution was supposed to help shield us from opressive government, but it can't do so if the people are ignorant.

You and I probably agree more then we disagree. At least I hope so.

We both are for viligence. However, where I have seem to be apprehensive and scepticial about America's national gov't, you seem to indicate a significant level of fear and indignation. If I'm reading you wrong, please correct me. I'm not attempting to be argumentative with you, I just don't like over reaction to events, especially when all the facts aren't known. I don't think that mindset works very well in a free society as ours.

I don't believe America is on the road to becoming a totalitarian state. I don't believe comparing America's future with the likes of Stalin, Hitler and Pol-Pot serves any good purpose, except may be to arouse the malcontents and extremists in our nation.

And if ole Ben Franklin was alive today, I believe his outlook on things would be much different. While many things remain th esame, 225 years can still have a way of altering beliefs and changing opinions of people.

"This is no time to over react and allow fear to control our lives"

We should have reacted long ago. Read the article below and see how far we have come under this "conservative" administration".

By Jacob Levich

BUSH'S ORWELLIAN ADDRESS: HAPPY NEW YEAR -- IT'S 1984 Seventeen years later than expected, 1984 has arrived. In his address to Congress Thursday, George Bush effectively declared permanent war -- war without temporal or geographic limits; war without clear goals; war against a vaguely defined and constantly shifting enemy. Today it's Al-Qaida; tomorrow it may be Afghanistan; next year, it could be Iraq or Cuba or Chechnya.

No one who was forced to read 1984 in high school could fail to hear a faint bell tinkling. In George Orwell's dreary classic, the totalitarian state of Oceania is perpetually at war with either Eurasia or Eastasia. Although the enemy changes periodically, the war is permanent; its true purpose is to control dissent and sustain dictatorship by nurturing popular fear and hatred. The permanent war undergirds every aspect of Big Brother's authoritarian program, excusing censorship, propaganda, secret police, and privation. In other words, it's terribly convenient. And conveniently terrible. Bush's alarming speech pointed to a shadowy enemy that lurks in more 60 countries, including the US. He announced a policy of using maximum force against any individuals or nations he designates as our enemies, without color of international law, due process, or democratic debate.

He explicitly warned that much of the war will be conducted in secret. He rejected negotiation as a tool of diplomacy. He announced starkly that any country that doesn't knuckle under to US demands will be regarded as an enemy. He heralded the creation of a powerful new cabinet-level police agency called the "Office of Homeland Security." Orwell couldn't have named it better. By turns folksy ("Ya know what?") and chillingly bellicose ("Either you are with us, or you are with the terrorists"), Bush stepped comfortably into the role of Big Brother, who needs to be loved as well as feared.

Meanwhile, his administration acted swiftly to realize the governing principles of Oceania:

WAR IS PEACE A reckless war that will likely bring about a deadly cycle of retaliation is being sold to us as the means to guarantee our safety. Meanwhile, we've been instructed to accept the permanent war as a fact of daily life. As the inevitable slaughter of innocents unfolds overseas, we are to "live our lives and hug our children."

FREEDOM IS SLAVERY "Freedom itself is under attack," Bush said, and he's right. Americans are about to lose many of their most cherished liberties in a frenzy of paranoid legislation. The government proposes to tap our phones, read our email and seize our credit card records without court order. It seeks authority to detain and deport immigrants without cause or trial.

It proposes to use foreign agents to spy on American citizens. To save freedom, the warmongers intend to destroy it.

IGNORANCE IS STRENGTH America's "new war" against terrorism will be fought with unprecedented secrecy, including heavy press restrictions not seen for years, the Pentagon has advised.

Meanwhile, the sorry history of American imperialism -- collaboration with terrorists, bloody proxy wars against civilians, forcible replacement of democratic governments with corrupt dictatorships -- is strictly off-limits to mainstream media. Lest it weaken our resolve, we are not to be allowed to understand the reasons underlying the horrifying crimes of September 11.

The defining speech of Bush's presidency points toward an Orwellian future of endless war, expedient lies, and ubiquitous social control. But unlike 1984's doomed protagonist, we've still got plenty of space to maneuver and plenty of ways to resist. It's time to speak and to act. It falls on us now to take to the streets, bearing a clear message for the warmongers: We don't love Big Brother.

My reference to Ben Franklin had to do with his often quoted remark, that as American's, we shouldn't sacrifice our freedoms for a little security. I can't totally agree with Franklin in that regard.

Sorry. I don't believe the phrase, "give me liberty, or give me death", applies right now, under the existing condtions. We are at war with international terrorism. Franklin and our Founding Father's never experienced what is happening today. The first job of the federal government, is to protect and defend it's citizens from aggressive forces, both foreign and domestic.

Having said that, it's still very important that we the people, also protect and defend our Constitutional rights. It's a serious balancing act. Surrendering our individual rights isn't acceptable. But the giving of some additional time and a little privacy in order to help fight terrorism is a very patriotic thing to do. IMHO, of course!

I agree that many people don't understand what it took for them to have the freedoms and liberty we all enjoy today. But then again, all isn't lost either.

I believe America is still the greatest nation on Earth and the best place to live. The current 2001 version may need some work, but it's still by far the best hope for mankind.

If you have nothing to hide, then you shouldn't be afraid.

That is totalitarian thinking, the kind of thing the KGB said to it's citizenry.

B.S.! It's a very true statement of fact!

You have every right to take issue with my remark, if you so choose. But in no way should it be compared to "totalitarian thinking". Thats rude and insulting.

What are you an anarchist?!

The point is, the feds have no biz in our biz, pure and simple.

I agree, "the feds have no biz in our biz", but right now, we are at WAR. That seems to be something many people here on Free Republic can't seem to grasp the reality of. I suggest you all face reality and join the fight!

You're either with us, or against us. There's no in between.

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