By Dave Kopel, research director, Independence Institute
National Review Online, September 21, 2001 9:10 a.m. More by Kopel on civil liberties and terrorism legislation.
Congress 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 all 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 "reasonable 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.