Battle Over Civil Liberties Heats Up as Congress Ponders Anti-Terrorism Act 9/28/01

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In the wake of the September 11 attacks on New York and Washington, Attorney General John Ashcroft is attempting to ram through the Congress a counter-terrorism package that will grant sweeping new powers to law enforcement -- some related to anti-terrorism enforcement and some not. But Ashcroft's effort is running into unexpectedly stiff opposition, not only from the usual suspects -- left-leaning civil libertarians and right-tilting just plain libertarians -- but also from a broad coalition of civic, religious, and ethnic groups, and members of Congress itself.

Citing the looming threat of new attacks, Ashcroft urged Congress to move swiftly to enact the administration package, which includes:

  • The authority to detain non-citizens suspected of ties to terrorist organizations indefinitely and without the right to appeal;
  • The ability to use in court wiretap evidence obtained in other countries in violation of the Fourth Amendment;
  • Secret court authorizations for wiretaps;
  • Longer prison sentences for terrorist offenses;
  • Access to users' Internet information without a court order;
  • The authority to review voice-mail messages with only a search warrant;
  • The ability to conduct "roving wiretaps" with only a single search warrant;
  • Making low-level computer hacking a federal terrorist offense.
"Every day that passes with outdated statutes and the old rules of engagement is a day that terrorists have a competitive advantage," Ashcroft warned the House Judiciary Committee, which is considering its own anti-terrorism package.

But despite Ashcroft's urgings, members of the Congress have applied the brakes. Sen. Patrick Leahy, chair of the Senate Judiciary Committee, is working on an alternative package more respectful of civil liberties. "If the Constitution is shredded, the terrorists win," he said late last week.

So is the House Judiciary Committee, where partisan feelings have run high ever since the Clinton impeachment fiasco and were exacerbated by disputes over last fall's closely and bitterly contested presidential election. Rep. John Conyers (D-MI), ranking Democrat on the House Judiciary Committee, said he and other members were "deeply troubled" by the constitutional implications. "Past experience has taught us that today's weapon against terrorism may be tomorrow's law against law-abiding Americans," Conyers said.

Liberal Democrats are not the only people on the Hill urging caution. House Republican leader Dick Armey of Texas came out of a meeting last week with Ashcroft "decidedly cool" to the Attorney General's plea for speedy, un-reviewed passage of the administration package.

A rapidly cobbled-together coalition, In Defense of Freedom (http://www.indefenseoffreedom.org), whose members range from the ACLU to Phyllis Schafly's Eagle Forum, is playing a crucial role in the fight to maintain constitutional liberties in the wake of the September 11 attacks. The group's members have not only spoken loudly and eloquently on the dangers involved in sacrificing freedoms for the sake of security (http://www.drcnet.org/wol/203.html#indefenseoffreedom), but have used their combined expertise to identify and analyze problematic elements within the Ashcroft proposal, as well as the competing proposals now coming from the Hill.

The National Association of Criminal Defense Lawyers, for example, homed in on asset forfeiture provisions in the Ashcroft proposal that are both redundant and, in NACDL's words, "highly offensive." The provision would allow law enforcement dramatically greater powers to seize property without a trial, including many criminal cases that have no bearing on terrorism. And as the NACDL notes, "it's totally unnecessary in light of another provision in the DOJ bill which grants broad authority to seize the assets of a terrorist organization. The government would never need to use [this section] to restrain the assets of a terrorist organization, but it would make it easier for them to grab property in every other type of case."

The Lawyers Committee for Human Rights has focused on the immigration aspects of the proposal, slamming its infinite, unappealable detention plank as "unprecedented" and "corrosive."

And the conservative Free Congress Foundation raised concerns about financial privacy in the face of the Ashcroft proposals. While supporting elements of the proposals, the foundation's Brad Jansen told Congress that others raised serious concerns. "Provisions of the bill to give broad powers to law enforcement may make us no more safe but could erode our civil liberties," Jansen told Congress. "The oft-repeated warning that we may have to give up some of our civil liberties in order to safeguard us from terrorism is a false choice."

Jansen told DRCNet the In Defense of Freedom coalition has had "a great deal of influence" on the Hill. "Instead of marking up the Ashcroft bill, after our briefings the committees agreed to wait for a week," he said. "I give the members credit for moving as quickly as they did, but also for taking the time to give these measures the serious consideration they warrant."

On a related issue, the Latin America Working Group has raised concern over the administration's request for waivers of human rights restrictions in foreign operations funding.

Two weeks ago, there was nearly unanimous agreement that civil liberties were about to take a big hit in the name of the "war on terrorism." With Congress working furiously to address security concerns, that threat still exists. But thanks to the efforts of In Defense of Freedom and the level-headedness of some political leaders, the Congress will not be providing a blank check or a law enforcement "wish list."

(DRCNet will issue an action alert on these issues this weekend or early next week.)

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