The Hilla-Reno Test

Oops, they did it again. Congress passed another bill that significantly increases the power of the federal government. It is for our protection, so they tell us.

Just as in the past, the bill was rushed on through. There was very little time for anyone who was actually voting on the legislation to review its details and, as usual, this is where the devil is. The bill has already been signed into law by President Bush and will be implemented immediately.

Benjamin Franklin warned us that if we were willing to give up liberty for safety, we would be deserving of neither. The truth is it doesn't matter how much we increase government's power or how many pieces of legislation we pass or how many armed guards we assign. We will never be able to protect ourselves from every conceivable type of terrorism.

There is, however, a way to create a safer nation for our citizens, and pre-1993 America provides us with a clue. Prior to 1993, terrorist activity did take place at our embassies and our military facilities overseas, but no terrorist activity occurred on our continental soil. This was because an invisible, but by no means imperceptible, "wall" kept our nation safe. It was the wall of deterrence.

Our enemies were afraid of us. They feared our capabilities and they feared our determined spirit. As a nation, we must come to the understanding that safety will return to our shores when, and only when, we are ready to strike back against terrorism in a shocking and decisive way, so as to re-establish fear in the hearts and minds of those who hate us.

If there is a bit of good news about the anti-terrorism bill, it is that it could have been much worse. Liberty-loving members from both political parties formed a coalition and were able to get some compromise measures placed into the final legislation. Here's the good news/bad news breakdown.

There is a sunset provision that will automatically kill the more draconian aspects of the legislation. But it doesn't take effect until 2005.

Law enforcement officials are still obligated to obtain traditional wiretap orders before looking at the content of e-mail or Internet sites, and must convince a judge there is probable cause that a crime is involved. But when investigators want to see the names of senders or receivers of e-mail, or when they want to look at website addresses, all they have to do is convince a judge that the information is "relevant" to a current and ongoing criminal investigation.

The electronically savvy know there is a world of very private information connected to subject lines, names of senders and recipients, and URLs. When law enforcement personnel get to this stage, can we really expect that they will go back to the judge's chambers for the requisite wiretap order before proceeding?

The American dream of property ownership is still intact. But investigators are now allowed to "sneak and peak." Under the new legislation, investigators who believe that informing a property owner would somehow compromise an investigation will be able to carry out certain authorized searches without ever having to notify the property owner.

The Foreign Intelligence Surveillance Act (FISA) still works to strengthen counterintelligence. But FISA is now so bloated by new modifications that it threatens to swallow up ordinary criminal investigations. Wiretaps can be made, and warrants on personal records can be issued, without public disclosure.

Portions of the bill are necessary as we wage war against terror. For example: allowing FBI agents and other federal investigators to share information with counterintelligence specialists about criminal grand juries and wiretaps; cracking down on non-citizens by permitting temporary incarceration or detention; disallowing possession of biological agents; stopping non-citizens who belong to terrorist organizations from entering the country; and tripling the number of agents on the Canadian border. These measures make sense.

But there is a danger, verifiable by history, whenever governmental power is increased to provide security for people. The fundamental notion of limited government exists to restrain the characteristic growth of state power. Some provisions in the anti-terrorism bill provide little, if any, limitation on governmental action.

Sadly, our representatives seem to suffer from a historical and civil amnesia in their hasty approach. Informed citizens must help others to realize that such laws undercut the inalienable and individual rights we seek to protect in our fight against the purveyors of terror.

Here's a test to rate the acceptability of the new law. Just ask yourself, would this legislation be acceptable no matter who was in office? True or false. Say, for instance, Hillary Rodham Clinton was president and Janet Reno ran the Justice Department. Would your comfort level be the same? Individual liberty is dependent on the score, and this exam is pass/fail.

The government has decided that the best way to stop being attacked is to become like other governments. This is known as the Wildebeest defense.

The quickest way to be like other governments is to quickly turn us into a police state. The good news is, the terrorists won't be able to find us and will possibly hit another unsuspecting country instead.

Some valid points, but the source (NewsMax) and the overall tone (hyperventilating) cause me to take it at much less than face value. Consider:

When law enforcement personnel get to this stage, can we really expect that they will go back to the judge's chambers for the requisite wiretap order before proceeding?

Yes. For one thing, the new laws require it. And any good defense attorney would ask to see documentation of the court order authorizing the tap. Failure to produce would invalidate the evidence. This already happens, so it's nothing new.

... investigators are now allowed to "sneak and peak." Under the new legislation, investigators who believe that informing a property owner would somehow compromise an investigation will be able to carry out certain authorized searches without ever having to notify the property owner.

This, too, already happens. The FBI can already "carry out certain authorized searches without ever having to notify the property owner." For example, John Gotti was put in prison in part because of evidence gathered via wiretap. (Recall that the FBI had also asked to tap the phone of one of the 9/11 hijackers but was denied.)

Folks like to toss bout Ben Franklin's warning, treating it as if were an either-or proposition. The real world is never so clear-cut.

We have terrorists operating within our borders, and in order to get them, we need to know about them. I'm not particularly happy about the new laws, either. I'm very pleased to see the sunset provisions, too. But I recognize that in a war you cannot always have things the way you'd like them.

Good point about the Ben Franklin quotation we see so often--I agree that we are at war, and that in wartime governments have to be granted extraordinary powers to deal with the enemy at home as well as abroad.

The author's main point, I think, is still valid: the greatly expanded powers granted the government to conduct surveillance on all within US borders can easily be misused for political purposes or by the wrong people---hence the author's title.

To give an example, I'm starting to be concerned by the parade of "former FBI agents" and "background press releases" I'm seeing in the print and broadcast media the past few days strongly propounding the theory that the anthrax mailings were the work of "right-wing hate groups." (One "retired" FBI geezer stated on Fox News that the basis for such a hypothesis was "profiling"---excuse me??? Isn't that the type of "investigative work" that put Richard Jewell through weeks of interrogation in 1996 and eventually led us taxpayers to pay out millions of dollars in a settlement to Jewell?!!) For my part, I strongly suspect that the FBI is looking for an "angle" to conduct its own politically correct jihad against the so-called "domestic terrorists" which it and its enablers among groups like Morris Dees' organization like to go after, as opposed to "ethnic" terrorists whose supporters may complain about "hate," "racial profiling," etc. And I'm starting to be concerned that the expanded powers granted the FBI in this new anti-terrorism bill will not be used against Al-Qa'eda cells in the US so much as against the "right wing hate group" du jour.

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