Anti-Terrorism Legislation
and Civil Liberties

Friends Committee on National Legislation

Newsletter, October 2001

Within days of the September 11 attacks, the Administration presented Congress with a wish list of expanded police and prosecutorial powers. There was no indication that these proposals had emerged from a thoughtful analysis of national security failures. Nor were these proposals designed to address specific deficiencies that might have prevented the September 11 attacks or future attacks.

Congress passed the USA PATRIOT Act, now signed into law, that fulfills most of the Administration's requests. Many of the provisions threaten constitutionally guaranteed rights and freedoms. These include the First Amendment right to free speech, the Fourth Amendment rights to be secure from unreasonable searches and seizures and to have searches conducted only when there is "probable cause" (e.g. to believe that a crime has been committed), and the Fifth Amendment right to "due process of law" (in criminal proceedings).

Problematic provisions

"Domestic terrorism" - a new crime. This newly-defined category of crime could be interpreted to include some political protests and acts of civil disobedience. It is not needed to counter terrorism but could be used by the government to severely prosecute relatively minor offenses and thus stifle dissent.

Enhanced surveillance. Prior to the USA PATRIOT Act, law enforcement authorities could conduct wiretaps only when they had probable cause to believe that a crime had been (or was about to be) committed. Searches of homes and their contents required warrants for which probable cause had to be demonstrated. A high level of confidentiality was maintained for student records, which may contain sensitive information.

The USA PATRIOT Act contains provisions which significantly diminish these Fourth Amendment guarantees. Here are a few examples.

* "Sneak and peek searches." The legislation allows law enforcement authorities to enter a home, office, or other private place and conduct a search, take photographs, and download computer files without notifying the person whose property is being searched until sometime after the search was conducted. This authority is not limited to anti-terrorism investigations but also extends to criminal ones.

Expanded wiretap authority. Several provisions reduce or eliminate the role of judges in ensuring that wiretapping and other electronic surveillance is carried out legally and with proper justification. For example, devices which, on phone lines, track only incoming or outgoing phone numbers (but not the content of calls) and which can be installed without the government having to demonstrate probable cause will now be applied to Internet communications where they will record some information about message content. Moreover, the warrants for installing these devices will have nationwide application which will make it nearly impossible for the judges who issue the orders to monitor them. The problem with provisions such as these is that they will compromise the privacy of countless innocent people, both those who are targeted erroneously for this kind of surveillance and others who communicate with persons under surveillance.

* Reduced privacy of student records. The legislation permits the Department of Justice to seek warrants for educational records deemed relevant to an "authorized investigation" and to disseminate the information for "official purposes." In recent decades, college campuses have been foci for dissent against controversial government policies. Fear of having personal information disseminated could deter some students from exercising their right to dissent. This, combined with the newly-created crime of "domestic terrorism," opens up the chilling possibility that the government could effectively quash student dissent.

Information sharing. "Foreign intelligence" information (defined broadly to include information related to national security and U.S. foreign policy) gathered during criminal (not necessarily anti-terrorism) investigations may be distributed to the Central Intelligence Agency, the National Security Agency, the Immigration and Naturalization Service, the Secret Service, and the military, without judicial review. The provision applies to U.S. citizens as well as non-citizens. Furthermore, the agencies receiving this information have virtually unlimited use of this information, so long as they can justify their use or disclosure of the information as being "necessary in the conduct of [their] official duties." This provision resurrects the specter of the government spying on U.S. citizens and using that power to limit free speech. This kind of information-gathering was used effectively to stifle dissent during the height of the Cold War.

Indefinite detention. This legislation exposes non-citizens to the possibility of indefinite detention on the authority of the Attorney General. The provision stipulates that when a non-citizen is detained on grounds of suspected terrorism or endangering national security, deportation proceedings or criminal charges must be filed within seven days. However, non-citizens whose countries of origin will not accept them may be detained for additional six-month periods if the Attorney General certifies the individuals as national security threats. The law provides no guidance on the process the Attorney General should follow in making such a certification.

A dangerous path

We believe that Congress, in passing this anti-terrorism legislation, has moved down a very dangerous path. Constitutionally guaranteed rights and freedoms should not be abridged without very close and careful scrutiny. Each provision that affects civil liberties should meet two important tests.

* First, any expansion of police and prosecutorial powers should offer significant additional protection against terrorism. If the same level of protection could be achieved by full implementation of existing laws, then new powers are not needed.

* Second, any provision that would limit a constitutionally guaranteed right should be narrowly tailored to ensure the least effect on civil liberties consistent with providing the necessary protection.

Balancing the rights of individuals with the good of the nation or community is an exercise that people in the U.S. have engaged in throughout U.S. history. It is vitally important that, as the nation responds to the September 11 attacks, Congress and the courts continue to labor with this balance. If this does not happen, then those who would harm the U.S. will, by damaging freedom and democracy, have achieved a far greater success in the long run than they did on September 11.

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