Terror Law

A Win for Fear, a Loss for Freedom

By: John Nichols

"Bad laws are the worst sort of tyranny", British parliamentarian Edmund Burke explained in 1800.

Two centuries have passed, but legislatures continue to reinforce the link between bad law and tyranny. The U.S. Congress did so this week, with the passage of the ambitiously named Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act.

Rare are the moments in American history when a Congress has surrendered so many cherished freedoms in a single trip to the altar of immediate fear.

Crafted in Attorney General John Ashcroft's little shop of legal horrors from the remnants of past assaults on the Constitution, the "USA PATRIOT ACT" is a legislative Frankenstein's monster.

"This bill goes light years beyond what is necessary to combat terrorism", argues Laura Murphy, Director of the ACLU Washington National Office. "Included in the bill are provisions that would allow for the mistreatment of immigrants, the suppression of dissent and the investigation and surveillance of wholly innocent Americans."

And the bad legislation is now the law of the land. Signed Friday by President Bush, it was opposed in the Senate only by Russ Feingold, D-WI. In the House is drew broader opposition from 62 Democrats - including the ranking Democrat on the House Judiciary Committee, Michigan's John Conyers, and Congressional civil liberties watchdogs such as Massachusetts' Barney Frank and Georgia's John Lewis - as well as three Republicans and Vermont Independent Bernie Sanders.

What freedoms have Americans lost? Civil libertarians worry most that the new legislation:

• Permits the Attorney General to incarcerate or detain non-citizens based on mere suspicion, and to deny re-admission to the U.S. of non-citizens (including lawful permanent residents) for engaging in speech protected by the First Amendment.
  
  
• Minimizes judicial supervision of telephone and Internet surveillance by law enforcement authorities in anti-terrorism investigations and in routine criminal investigations unrelated to terrorism.
  
  
• Expands the ability of the government to conduct secret searches, again in anti-terrorism investigations and in routine criminal investigations unrelated to terrorism. This means that law enforcement authorities can enter and search an individual's home without presenting a warrant or in any way informing the subject of the search.
  
  
• Gives the Attorney General and the Secretary of State the power to designate domestic groups as terrorist organizations and to block any non-citizen who belongs to them from entering the country.
  
  
• Makes the payment of membership dues to political organizations a deportable offense.
  
  
• Grants the FBI broad access to sensitive medical, financial, mental health, and educational records about individuals without having to show evidence of a crime and without a court order.
  
  
• Will lead to large-scale investigations of American citizens for "intelligence" purposes and use of intelligence authorities to by-pass probable cause requirements in criminal cases.
  
  
• Puts the CIA and other intelligence agencies back in the business of spying on Americans by giving the Director of Central Intelligence the authority to identify priority targets for intelligence surveillance in the United States.
  
  
• Allows searches of highly personal financial records without notice and without judicial review based on a very low standard that does not require probable cause of a crime or even relevancy to an ongoing terrorism investigation.
  
  
• Allows student records to be searched based on a very low standard of relevancy to an investigation.
  
  
• Creates a broad new definition of "domestic terrorism" that could target people who engage in acts of political protest and subject them to wiretapping and enhanced penalties.
  
  

Standing alone in the Senate to oppose the legislation, Feingold recalled past assaults on basic liberties: "The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War."

He then explained to his fellow senators: "Now some may say, indeed we may hope, that we have come a long way since the those days of infringements on civil liberties. But there is ample reason for concern. And I have been troubled in the past six weeks by the potential loss of commitment in the Congress and the country to traditional civil liberties."

In the contemporary legislature where he sits, the Senate of the United States of America, no member would stand with Russ Feingold. But he did not stand alone. Surely, a legislator from another era and another legislature, Edmund Burke, was with him in spirit.