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.

LP and the ACLU

Libertarian Concepts

Published by the Libertarian Party
www.lp.org

Libertarians are self-governors in both personal and economic matters. They believe government's only purpose is to protect people from coercion and violence. They value individual responsibility, and tolerate economic and social diversity.

What is the Libertarian Party?

The Libertarian Party is, by most objective standards, the most successful third party in America. Libertarians favor dramatically shrinking the size and cost of government, and eliminating the laws that stifle the economy and control people's personal choices. The Libertarian platform calls for vigorous defense of the Bill of Rights, free enterprise, civil liberties, free trade, no meddling overseas, and community charity.

Are Libertarians conservative or liberal?

Neither. Unlike liberals and conservatives, Libertarians advocate a high degree of both personal and economic liberty. In a sense, Libertarians "borrow" from both sides to come up with a logical and consistant whole - but without the broken promises of Republican and Democratic politicians. For example, Libertarians agree with conservatives about freedom in economic matters; in favor of lowering taxes, slashing business regulations, and charitable (rather than government) welfare. But Libertarians agree with liberals on personal tolerance; in favor of people's right to choose personal habits and lifestyles without government intervention. Don't you want to support a party that is consistant about liberty?

The Declaration of Independence says the purpose of government is to protect our rights to life, liberty and the pursuit of hapiness. The Constitution grants government certain powers for this purpose. The 10th Amendment to the Constitution limits the federal government to just these powers and functions, but the Democrats and Republicans have ignored this supreme law of the land. The Libertarian Party wants to restore constitutionally limited government. This would shrink government spending to the point where it can be funded by the tariffs and excise taxes the government already collects. Do you really know what your taxes buy? You might be surprised to learn that more than one third of your income taxes go to pay the interest on the national debt. Think about that startling fact when you go to work tomorrow. You'll labor a significant portion of the day just to make interest payments.. How long do you want to continue working to make these payments? So, we could eliminate the income tax, the IRS, and all of the bookkeeping and reporting you currently have to do. If we did eliminate the income tax, what would you do with all this money? What charitable causes would you support, whatthings would you buy, what places would you visit? What would you do for yourself, your family, and the world you live in? The Libertarian Party wants to give you the chance to live a better life and create a better world. But we need your help to make it happen.

Visit the Libertarian Party at: www.lp.org to become a member.

Freedom of Expression and the ACLU

Freedom of speech, of the press, of association, of assembly and petition - this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indespensible condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote would wither and die.

But in spite of its "preferred position" in our constitutional hierarchy, the nations commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI - hardly ancient history - that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law has evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government's power to punish "seditious" and "subversive" speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were "fit for something better than slavery and cannon fodder." Or Sidney Street, Jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on senstive issues like religeon or sexuality? Should the Internet be subject to any form of governmental control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

The American Civil Liberties Union (ACLU)

is freedom's watchdog, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States. The ACLU never takes electoral postitions - liberal or conservative, Republican or Democrat, left or right. Most clients are ordinary people who suffered an injustice and decided to fight back.

Even though the United States is a free country, abuses of people's civil liberties still occur. For example, a disabled person may be denied admission to a university, even though she graduated at the top of her class in high school. Children living in the inner city are denied the samepublic school resources that are available to more afflue, suburban children. A government employee is fired for "blowing the whistle" on a dangerous or currupt parctice at his workplace. A book is removed from a public school library because its subject matter is controversial. Without the ACLU, which charges no fees for its legal services, these civil liberties violations would go unchallenged and our society would be less free.

Since its founding in 1920, the nonprofit, nonpartisan ACLU has grown from a roomful of civil liberties activists to an organization of nearly 300,000 members and supporters, with offices in almost every state. Its work defending and protecting civil liberties for all makes the ACLU liberty's law firm.

The ACLU Mandate:

The American system of government is founded on two counter balancing principles: first, that the majority of the people governs, through democratically-elected representatives; and second, that the power even of a democratic majority must be limited, to ensure individual rights. Majority power is limited by the Constitution's Bill of Rights, which consists of the original ten amendments ratified 1791, plus three post-Civil War amendments (the Thirteenth, Fourteenth and Fifteenth) and the Nineteenth Amendment (women's sufferage), adopted in 1920. The mission of the ACLU is to preserve for each new generation all of these protections and guarantees.

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