Misguided Libertarians Are Hindering the War on Terrorism

We should be making it easier, not harder, for intelligence agencies to protect us

A civil-libertarian backlash against the USA PATRIOT Act is gathering steam. More than 140 cities and communities in 27 states have passed resolutions opposing it, according to the American Civil Liberties Union. The ACLU itself has intensified its nonstop barrage, filing a lawsuit on July 30 challenging the constitutionality of one of the act's most far-reaching provisions, and airing TV ads that warn of government spies secretly searching homes. Some librarians say they are destroying records to prevent the feds from tracking patrons' book borrowing and Internet browsing.

Even Congress, which overwhelmingly adopted the 156-section counter-terrorism statute six weeks after the September 11 attacks, without most members having read it, is showing signs of buyer's remorse.

On July 22, the House in a 309-118 vote adopted an appropriations rider to bar the government from invoking the PATRIOT Act to search a home or business without immediately notifying the occupants. Conservative Republicans, including the sponsor, Rep. Butch Otter of Idaho, joined by the ACLU, cheered this vote as a mighty blow against "sneak-and-peek" searches. The Justice Department denounced it as a "terrorist tip-off amendment."

Do 309 House members really want to require the FBI to leave a nice note for the next Mohamed Atta, if and when agents have a chance to sneak into his motel room and copy computer files detailing the identities of his co-conspirators?

It's not easy to tell: The platitudinous floor debate left unclear whether the purpose is to bar all delayed-notice searches, despite decades of judicial precedent upholding such searches under some circumstances, or just to roll the clock back to before the PATRIOT Act. Otter demonstrated his own command of the subject by claiming that Section 213 "allows the CIA and the NSA to operate domestically." Wrong.

The Senate has also been doing its part to make it harder for the government to find suspected terrorists.

On July 17, it voted to cut off all funding for the Pentagon's Terrorism Information Awareness program. Formerly named Total Information Awareness (and unrelated to the PATRIOT Act), this nascent research project into possible uses of "data-mining" and other sophisticated computer technology to find terrorists before they strike has been the focus of a storm of ill-informed Big-Brother-is-about-to-be-watching-you hype. But the most immediate impact of a funding cutoff would be to curtail development of software that would link counter-terrorism agencies' databases to facilitate information-sharing and the like.

This at a time when the congressional Intelligence committees are slamming those same agencies for failing to share information that might have enabled them to prevent the 9/11 attacks!

In their 850-page report, released on July 24, the committees complained of intelligence agencies' "reluctance to develop and implement new technical capabilities aggressively." How are the agencies supposed to do that if Congress kills TIA?

Are Congress and the American people at least waking up to the most insidious Bush administration threats to our freedoms? Not really. Congress has virtually ignored the biggest danger: the administration's incarceration of suspected "enemy combatants" without charges, access to lawyers, or meaningful judicial review.

Instead, Congress and many civil libertarians have misdirected their zeal by mischaracterizing the PATRIOT Act's largely reasonable and incremental expansions of the investigative powers that are the government's main hope of catching would-be mass murderers before it's too late.

A recent ACLU fundraising letter, for example, claims that the PATRIOT Act includes "a provision that might allow the actions of peaceful groups that dissent from government policy, such as Greenpeace, to be treated as 'domestic terrorism.' " This is flat-out false. The act's definition of domestic terrorism (Section 802) covers only criminal activities that are, among other things, "dangerous to human life."

Such scare tactics appear to have succeeded, for now, in preventing Congress from granting the administration additional new powers, such as a much-needed proposal to make clear the FBI's authority to search the possessions of the next Zacarias Moussaoui, the suspected "20th hijacker," who was in custody (but unsearched) for weeks before 9/11.

Libertarians are also intent on blocking re-enactment of the many important PATRIOT Act provisions that will sunset in 2005.

This is not to deny that some sections of the law authorize significant invasions of privacy for the sake of difficult-to-gauge benefits in preventing terrorist attacks.

The most problematic is Section 215, the one challenged in the new ACLU lawsuit. It expands FBI agents' powers, in the course of authorized foreign-intelligence investigations, to inspect without notice and copy records about innocent individuals (as well as suspected terrorists) held by colleges, libraries, hospitals, nonprofits, mosques, Web sites, businesses, banks, and other organizations, and to use gag orders to prevent anyone from telling the targets.

Other arguably overbroad provisions are Section 218, which allows investigators to use the search powers provided by the Foreign Intelligence Surveillance Act, even when their primary goal is to find evidence of ordinary crimes, and Section 411, which can be read as authorizing deportation of aliens for innocent associations with terrorist groups.

Even these broad new powers may well be justified by the unprecedented threats we now face. Many libertarians draw exactly the wrong lesson from the Intelligence committees' account of the government's failure to prevent the 9/11 attacks.

The report's catalog of human errors, the ACLU asserts, shows that "the government does not need additional new law enforcement powers."

The opposite is true. Intelligence agencies will never be infallible. We should be making it easier, not harder, for their imperfect agents to protect us.

Misguided and outdated rules imposed on the intelligence agencies in the name of civil liberties before 9/11 contributed to their failure to prevent the attacks.

In particular, the so-called legal "wall" between intelligence and law enforcement agencies helped foster the notorious reluctance of the CIA and FBI to share information.

The PATRIOT Act opened the way for better information-sharing by largely dismantling this wall—with the help of a decision last November by the special Foreign Intelligence Surveillance Court of Review. The statute also extended to terrorism investigations some powers that prosecutors had long used in drug and organized-crime cases and updated anachronistic electronic surveillance rules to catch up with new communications technologies.

As for the dreaded "sneak-and-peek" provision (Section 213), the claims that it trashes the Fourth Amendment are far-fetched.

Federal courts, including the Supreme Court, have authorized such searches for decades in circumstances in which immediate notification might defeat the purpose of the surveillance, including all wiretaps.

Section 213 codified a legal standard similar to that used by the U.S. Court of Appeals for the 2nd Circuit, in Manhattan. While the Section 213 standard is more favorable to prosecutors than those used by some other courts, it is hardly a blank check: Notice may be delayed only for as long as "reasonable," and only when necessary to avoid endangering "life or physical safety," intimidation of witnesses, tampering with evidence, flight from prosecution, or "otherwise seriously jeopardizing an investigation or unduly delaying a trial."

The PATRIOT Act has also been blamed for detentions and other possible abuses that are completely unrelated to it.

Consider the front-page New York Times article on July 21 hyping a leaked report to Congress by the Justice Department's inspector general. The article trumpeted (unproven) complaints by Arab and Muslim prisoners of "serious civil-rights and civil-liberties violations involving enforcement of ... the USA PATRIOT Act."

But these complaints—mainly of beatings and verbal abuse by guards—had nothing to do with enforcement of the PATRIOT Act. Its only relevance was that this report would not have been written at all but for Section 1001, which requires periodic reports to Congress of any and all civil-liberties complaints about Justice Department employees.

We need less media misinformation, less libertarian hysteria, and more judicious congressional oversight of the (unfortunately uncooperative) Justice Department.

The PATRIOT Act's critics have pointed to precious little evidence that it is anything like the engine of McCarthyite witch-hunts they depict it to be. And while a few sections do pose some risk of overly intrusive FBI spying, there are worse things than that. One of them is being murdered by terrorists.

If and when government starts making effective use of the powers it has, and can demonstrate that they are insufficient,

Didn't 9/11 make that point? In the 1970s, Democrats gutted the CIA and FBI. The agencies were forbidden to share information. (Democrats were trying to hide, and did hide, where the New Left got its money). All the Patriot Act does is take us back, partway, to what American Federal law enforcement was before the Church hearings. We were not a police state then and we are not one now.

"We should dismantle every intelligence agency in this country piece by piece, nail by nail, brick by brick." ...Cong. Ron Dellums, Chairman House Armed Services Committee. 1993

The Patriot Act undoes what Dellums, the ACLU and other Rats did. The Left is up to its usual propaganda. Bad, bad Patriot Act. Everyone knows the Patriot Act is bad. But no one can cite specifics. No one can say how it has impacted their live or the life of anyone they know--because it hasn't. All we get are vague claims about Hillary maybe getting into office and using it. As if the lack of a law would stop Hillary and other Rats from doing whatever they want.

This is the fourth time Rats have mounted a similar campaign. The first was against the Palmer raids after WWI. Thousands of bolshevik aliens were deported. The ACLU was founded as a result of that and was effective in preventing further prosecutions of domestic subversion. The second was during the 1950s when Rats used McCarthy as a bogeyman to shut down investigation of traitors in the Democrat party. The third was during and after Watergate when Rats, as I mentioned, didn't want anyone to find out the peace movement had been funded by the KGB. We see the fourth campaign today. And, as in the other three instances, some conservatives who should know better are buying it.

The following are a sample of some of the changes as a result of the so-called USA PATRIOT Act. The legislation:

minimizes judicial supervision of federal telephone and Internet surveillance by law-enforcement authorities.

expands the ability of the government to conduct secret searches.

gives the attorney general and the secretary of state the power to designate domestic groups as terrorist organizations and deport any noncitizen who belongs to them.

grants the FBI broad access to sensitive business records about individuals without having to show evidence of a crime.

leads to large-scale investigations of American citizens for "intelligence" purposes.

More specifically, Section 203 (Authority to Share Criminal Investigative Information) allows information gathered in criminal proceedings to be shared with intelligence agencies, including but not limited to the CIA — in effect, say critics, creating a political secret police. No court order is necessary for law enforcement to provide untested information gleaned from otherwise secret grand-jury proceedings, and the information is not limited to the person being investigated.

Furthermore, this section allows law enforcement to share intercepted telephone and Internet conversations with intelligence agencies. No court order is necessary to authorize the sharing of this information, and the CIA is not prohibited from giving this information to foreign-intelligence operations — in effect, say critics, creating an international political secret police.

The concern here is about the third branch of government. One of the overarching problems that pervades so many of these provisions is reduction of the role of judicial oversight. The executive branch is running roughshod over both of the other branches of government. I find it very bothersome that the government is going to have more widespread access to e-mail and Websites and that information can be shared with other law-enforcement and even intelligence agencies. So, again, we're going to have the CIA in the business of spying on Americans — something that certainly hasn't gone on since the 1970s when the illegal investigations of thousands of Americans under Operation CHAOS, and the spying carried out by the CIA and National Security Agency against U.S. activists and opponents of the war in Southeast Asia.

Nor do the invasion-of-privacy provisions of the new law end with law enforcement illegally searching homes and offices. Under Section 216 of the USA PATRIOT Act (Modification of Authorities Relating to Use of Pen Registers and Trap and Trace Devices), investigators freely can obtain access to "dialing, routing and signaling information." While the bill provides no definition of "dialing, routing and signaling information," the ACLU says this means they even would "apply law-enforcement efforts to determine what Websites a person visits." The police need only certify the information they are in search of is "relevant to an ongoing criminal investigation."

This does not meet probable-cause standards — that a crime has occurred, is occurring or will occur. Furthermore, regardless of whether a judge believes the request is without merit, the order must be given to the requesting law-enforcement agency, a veritable rubber stamp and potential carte blanche for fishing exhibitions.

Additionally, under Section 216, law enforcement now will have unbridled access to Internet communications. The contents of e-mail messages are supposed to be separated from the e-mail addresses, which presumably is what interests law enforcement. To conduct this process of separation, however, Congress is relying on the FBI to separate the content from the addresses and disregard the communications.

In other words, the presumption is that law enforcement is only interested in who is being communicated with and not what is said, which critics say is unlikely. Citing political implications they note this is the same FBI that during the Clinton administration could not adequately explain how hundreds of personal FBI files of Clinton political opponents found their way from the FBI to the Clinton White House.

And these are just a few of the provisions and problems. While critics doubt it will help in the tracking of would-be terrorists, the certainty is that homes and places of business will be searched without prior notice. And telephone and Internet communications will be recorded and shared among law-enforcement and intelligence agencies, all in the name of making America safe from terrorism.

I understand the desire of lawmakers to respond forcefully to the Sept. 11 attacks but this is more of the same old same old. Government has the tendency to want to proliferate during times of crisis, and that's why we have to constantly fight against it. It's a natural impulse and, in many ways, I don't fault it. In some ways they're just doing their job by aggressively seeking as much law-enforcement power as possible, but that's why we have checks and balances in our system of government, and that's why I'm upset that Congress just rolled and played dead on this one.

This legislation wouldn't have made any difference in stopping the Sept. 11 attacks. I seriously believe this is a violation of our liberties. After all, a lot of this stuff in the bill has to do with finances, search warrants and arrests."

I don't like the sneak-and-peek provision because you have to ask yourself what happens if the person is home, doesn't know that law enforcement is coming to search his home, hasn't a clue as to who's coming in unannounced … and he shoots them. This law clearly authorizes illegal search and seizure, and anyone who thinks of this as antiterrorism needs to consider its application to every American citizen.

The rationale for the Fourth Amendment protection always has been to provide the person targeted for search with the opportunity to point out irregularities in the warrant, such as the fact that the police may be at the wrong address or that the warrant is limited to a search of a stolen car, so the police have no authority to be looking into dresser drawers. Likely bad scenarios involving the midnight knock at the door are not hard to imagine.

The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This action by the Bush Administration is indefensible.

Among the worst seven provisions of the bill are the following.

1. The FBI can secretly enter someone's home or office, search the premises, and leave without notifying the owner. In theory, this would be supervised by a court. However, the notification of the secret search "may be delayed" indefinitely (Section 213). This is, of course, a complete violation of the Fourth Amendment, which prohibits "fishing expeditions" and guarantees the right of the people to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." All the federal government must do to suspend your Fourth Amendment rights is accuse you of terrorism.

2. Any U.S. attorney or state attorney general can order the installation of the FBI's Carnivore surveillance system. As reported before, this system records all e-mail correspondence and the addresses of Web pages visited by a specific target. Previously, there were legal restrictions on Carnivore and other Internet surveillance techniques (Section 216). Even more troubling, Fox News has reported that the FBI plans to go beyond the authorization of the new bill and change the very architecture of the Internet. The FBI wants to route all net traffic through central servers for monitoring. While this will require the voluntary compliance of the major ISPs, most experts agree that they will quickly cave into these demands for fear of appearing uncooperative or unpatriotic.

3. An accused terrorist who is a foreign citizen can be held for an unspecified series of "periods of up to six months" with the attorney general's approval. He doesn't have to be charged and he may be denied access to an attorney (Section 412). In effect, this provision suspends any due process provisions of the Constitution, especially the Fifth Amendment which states that "no person … [shall] be deprived of life, liberty, or property without due process of law." While the provision of this bill only applies to foreigners, it sets a dangerous precedent and could easily be used in the future against U.S. citizens accused of domestic terrorism.

4. Foreigners who enter the U.S. on a visa will be subjected to biometric technology, such as fingerprint readers or iris scanners. This will become part of an "integrated entry and exit data system" (Section 414). My fear is that eventually all Americans will be forced to submit to this technology. This bill will put the infrastructure in place. In will then be a simple step to require all citizens to participate in this system. Failure to do so may result in the inability to travel or even to buy and sell merchandise or property.

5. Without a court order, the FBI can require telephone companies and Internet service providers to turn over customer records. All they have to do is claim that the "records sought are relevant to an authorized investigation to protect against international terrorism." Worse, the company contacted may not "disclose to any person" that the FBI is doing an investigation (Section 505). The bill of rights was written to protect citizens from exactly this kind of abuse. This provision of the new law completely throws out the presumption of innocence doctrine that is central to our system of justice. Now anyone can be treated as a criminal if they are merely accused of a crime.

6. Without a court order, credit reporting agencies must disclose to the FBI any information that agents request in connection with a terrorist investigation. The agencies may not disclose to the subject that the FBI is snooping in their file (Section 505). Again, there is no presumption of innocence and the suspect is denied his due process rights. This gives government agents the authority to spy on anyone's financial activities. All they have to do is make the accusation of terrorism and the door swings wide open.

7. The current definition of terrorism is expanded to include biochemical attacks and computer hacking. Some current computer crimes — such as hacking a U.S. government system or breaking into and damaging any Internet-connected computer — are also covered (Section 808). While these are no doubt crimes and should be prosecuted, by classifying them as "terrorist activities," suspects are subject to having their rights radically curtailed, as I have outlined above. If convicted, they are subjected to extremely stiff penalties. Prison terms range between five and 20 years (Section 814.

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