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 ongress
is being asked to rush to pass emergency antiterrorist
legislation written by the Department of Justice. House Committee
hearings are scheduled for Friday, Senate hearings for Tuesday,
and the DOJ is demanding the bill be enacted by the end of the week.
It would be a serious mistake for Congress leaders to force this
legislation into law without careful scrutiny, because much of the
legislation turns out to have nothing to do with fighting terrorism.
Instead, the legislation contains a host of items which have been
on bureaucratic wish lists for many years.
As we strongly
support Attorney General Ashcroft and his staff in performing their
executive-branch duties, Congress must remain faithful to its own
duties, which is to make laws carefully and correctly.
Before voting
for any bill — and especially for a bill on a fast-forward
agenda — congressmen have an obligation to read the bill. When
they read the proposed new DOJ bill, they will find much that is
unnecessary, and more that is a serious threat to the Bill of Rights.
For example
Section 406 of the bill expands "property" to certain
drug-forfeiture orders. The expansion might or might not be a good
idea, but it has no business being in an emergency terrorism bill.
Also, the bill authorizes secret searches, whereby a person would
never be notified that his property has been searched. This broad
provision applies to alll kinds of searches, not just terrorism
searches, and is simply a retread of a failed proposal from the
last
Congress.
A much larger
set of non-terrorist items can be found in the wiretap proposals.
Currently, federal wiretaps operate under two distinct statutes.
One statute is the Foreign
Intelligence Surveillance Act, enacted in 1978. This law gives
broad surveillance powers to the federal government, and authorizes
the issuance of wiretaps by a secret seven-judge court in Washington,
D.C. Antiterrorist wiretaps would fall under FISA, and the bill
does contain several provisions to expand or strengthen FISA.
There is a
separate statute, the Wiretap
Act, which is used for ordinary crimes. (18 US Code, sections
2510-22). This act authorizes wiretapping for over 100 types of
crimes — ranging from homicide down to student loan fraud.
While FISA wiretaps are extremely secret, the administrative office
of the United States Courts produces an annual "Wiretap
Report" which summarizes statistics about the year's Wiretap
Act surveillance. These reports show conclusively that the Wiretap
Act is almost wholly unrelated to terrorism. While wiretaps are
up over 600% since 1980, only about 1 in 500 wiretaps involves homicide
or arson, the primary terrorist offenses. About three-fourths of
wiretaps are for drugs.
It's theoretically
possible that a Wiretap Act interception could be used in a terrorism
investigation — such as a wiretap on an American citizen suspected
of creating false immigration documents. But the DOJ bill proposes
a host of Wiretap Act expansions which are not limited to terrorism
investigations, and which vastly increase the power of the federal
government to conduct surveillance of the reading habits and correspondence
of the American people.
In 1979, five
members of the U.S. Supreme Court ruled in Smith
v. Maryland that the federal Constitution does not require
the police to get a warrant in order to place a pen register or
a "trap and trace device" on someone's telephone. A pen
register records the numbers which are dialed by a particular phone;
a trap and trace device records the numbers which call a particular
phone. The narrow majority upholding the warrantless use of these
devices explained that devices were constitutional only because
they revealed so little personal information: They did not disclose
the parties who conversed, or the subject of the conversation, or
even whether the call was connected.
A congressional
statute formalizes federal use of pen registers, and requires judges
to issue pen-register orders under a "rubber stamp" standard.
The judge must issue the order whenever a U.S. Attorney requests
an order. Pen registers and trap and trace devices are much more
common than wiretaps. Last year, there were about 5,000 such devices
used on Americans by federal law enforcement.
The DOJ bill
would expand pen-register/trap-and-trace power to include surveillance
of Internet surfing and of e-mail. (A similar measure was included
in a bill hastily passed by the Senate on September 12, with hardly
any discussion.) This means that the FBI, the BATF, the DEA, the
INS, or any other federal law-enforcement agency could — without
a search warrant — survey a citizen's e-mail and his web
surfing. The web surveillance can include every URL that the person
visits, and also includes (by virtue of including URLs created by
search engines) the key words of every search the person submits.
The e-mail surveillance would not include the text of messages,
but would include the to/from information, as well as the subject
line of a message, and also the size of the message.
Such surveillance
is far more intrusive
that old-fashioned telephonic pen registers. If you make a telephone
call to Arnold & Porter, the pen register doesn't disclose who
you talked to, or how long you talked. In contrast, e-mail surveillance
reveals the particular persons who communicated. Traditional pen
registers, of course, disclose nothing about a person's reading
habits; but URL surveillance can build an extremely detailed picture
of how a person exercises his First Amendment rights — and
can also disclose a person's sexual orientation, if he visits erotic
websites.
Even though
e-mail and web surveillance reveal the intimate details of a person's
thoughts and life, such surveillance is a legitimate tool for law
enforcement — as long as there is compliance with the Fourth
Amendment's requirement for a warrant based on probable cause. Current
law allows such surveillance based on a search warrant. There is
no need to abandon the warrant requirement, and there is certainly
no need to toss out the warrant rule to allow searches under a statute
that has very little connection with counterterrorism.
If we want
to give the federal government vast new surveillance powers for
drug, pornography, and gambling laws, then let us have a full and
open debate on the subject, and not deceive ourselves with the notion
that this expansion is part of fighting terrorism.
Federal laws
regulate the federal government, but they usually cannot, as a practical
matter, control foreign governments. Many foreign governments conduct
illegal electronic surveillance of American citizens, using surveillance
facilities housed in embassies and consulates.
The DOJ bill
would actually reward this practice by allowing the use in federal
courts of surveillance illegally conducted by foreign governments
(Section 105). The foreign governments would even be protected by
the secrecy rules which apply to confidential informants. What this
does is set up a system whereby a foreign government can violate
American laws by wiretapping Americans, while the American government
can violate foreign laws by wiretapping foreigners, and then both
governments collude to share their fruits of their joint violations
of their nations' privacy laws.
The DOJ bill
gives the DOJ the power to permanently detain legal aliens
in the United States, in conjunction with a terrorism investigation.
Notably, the only court allowed to review these claims pursuant
to a habeas corpus petition would be the District of Columbia
court of appeals — so a person detained in Los Angeles would
have to file suit in Washington. Even then, the standard for detention
is very low, requiring only the attorney general's "reasoable
belief," a standard lower than "probable cause,"
which is needed to issue a search warrant. The
potential for abuse is immense, and no matter how much one trusts
the current staff of the DOJ, this is a power that could be used
by every future attorney general.
The Alien
Acts under John Adams and the Palmer
Raids under Woodrow Wilson are only two of the many instances
of Department of Justice of abuses of lawful aliens, carried out
under the guise of national security, but in fact intended to stifle
political debate in the United States. Attorney General Palmer used
a series of Washington bombings to attempt to eradicate what he
called the "disease
of evil thinking."
When the Department
of Justice can imprison an alien for life, the potential to intimidate
political speech is immense. And the American people, who are entitled
to hear the broadest range of political debate, are the losers.
This extremely
dangerous provision would be better with a definite sunset date.
Indeed, so
would the entire bill. This bill is touted as an emergency wartime
measure. We are going to win this war, and we should ensure that
once the war is over, America is just as free as before. We should
not repeat the mistakes of World War I and World War II, in which
wartime emergency powers were allowed to continue into peacetime.
As immigration-reform
groups have documented in great detail, immigration-law enforcement
in this country is a joke. There are many thousands of aliens in
this country who arrived in student visas, and who are no longer
students. As with gun laws, properly enforcing the existing laws
ought to precede calls for enacting more laws.
The proposed
statute (section 302) allows a life sentence for the "terrorist
offenses" — which at first blush seems unnecessary, because
life sentences (or sentences of hundreds of years and more) are
already available for homicide and acts of mass arson or bombing.
But when one
reads the statute's new definition of "terrorism" (section
309), one sees that minor offenses are suddenly turned into "terrorism"
(with a potential life sentence). The definition of terrorism includes
actual terrorist offenses (e.g., homicide, arson, assassination),
but includes so many other federal crimes that it covers teenagers
who throw rocks through a post office window (18 USC section 1361,
destruction of government property, no matter how little), or human-rights
activists who vandalize the sign outside a dictatorship's government's
office building (18 USC sec. 956, conspiracy to injure property
of a foreign government), as well as many, many other nonterrrorist
offenses.
I am not arguing
against punishing people who commit these low-level crimes, but
I am arguing against calling them "terrorists" and subjecting
them to life in prison. No matter how much faith one has that the
Ashcroft DOJ will not abuse this very over-inclusive definition,
Mr. Ashcroft will not be attorney general forever, and the history
of the DOJ — including under the Janet
Reno, John
Mitchell, and Mitchell
Palmer regimes — suggests that almost any power which can
be abused eventually will be abused.
The Center
for Democracy and Technology has identified many more problems
with the bill, in addition to the ones detailed in this article.
Plainly, this is a very flawed bill that cannot be fixed with an
amendment or two.
It is very
important that our nation have all the powers necessary to win the
war. America's greatest power — and the reason that the dark
ages tyrants fear and envy us — is our open society. America
did not panic when the British
burned Washington, D.C., to the ground in the War of 1812, and
America must not panic today.
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