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Anti-Terrorism and Constitutional Liberties

Anti-Terrorism and Constitutional Liberties
Commentary by J. Bradley Jansen
May 30, 2002

The War on Terrorism has domestic implications that directly impact on our Constitutional liberties. In response to times of terrorism and war, there is a debate between the false choice of privacy versus security. The dichotomy is false because we deserve both privacy and security. This country was founded on those ideals, and they were enshrined in our Constitution. Our Founding Fathers were right. The irresponsible approach of spying on everyone all the time instead of focusing resources on the real threats to our country only leaves us both vulnerable and violated.

Worries about individual rights are often brushed aside during trying times of conflict, and various institutions, both public and private, use the cover of war as pretexts for fishing expeditions of their own desires entirely unrelated to national security. Many reductions in our freedom will do nothing to stop terror from without, but they will take our society further down the road of the even more sinister menace, totalitarianism from within. We should ensure any invasion of privacy be limited, targeted, and effective.

Many of our Constitutional rights and liberties are threatened now more than usual. Even long established safeguards enshrined in the Bill of Rights are impacted. Regarding the First Amendment of the Constitution, the new relaxation of guideline limits on the Federal Bureau of Investigation may result in greater surveillance of religious activities and have the effect of interfering with our free exercise thereof. Lawful political protests where a minority of participants resort to violence could invoke new “terrorist” measures against otherwise legitimate public assembly and speech. The barriers to surveillance of suspected protesters have also been lowered.

It is our Fourth Amendment protections that have under the greatest danger. Law enforcement has been granted new “sneak and peak” authority. This “delayed notice” provision greatly expands the government’s authority to conduct covert searches. In effect, this means that law enforcement agencies can now enter a person’s home or office, search through the person’s possessions, in some cases seize physical objects or electronic information, without the person knowing that law enforcement agents were there.

In addition, the government now has greater access to confidential information in other ways. Voice mail is treated under the lower e-mail rather than telephone conversation protection standards. Pen registers and trap and trace authority has been greatly expanded—most significantly undermining electronic communication privacy. The intent to circumvent standard for the issuance of roving wiretaps has been eliminated. Nationwide execution of court orders for many of these new provisions is now permissible. The Posse Comitatus exceptions have also been expanded.

Regarding the Foreign Intelligence Surveillance Act, the new authority standard to spy on Americans or foreign persons in the United States has been lowered from “the” purpose of the surveillance to “a significant purpose” of the surveillance. Congress is now considering granting the U.S. Customs Office the authority to conduct warrantless searches of outbound international mail for the first time since Ben Franklin created the Post Office.

Fifth Amendment protects against the taking of private property without just compensation are reduced. The prime motivation of the warrantless search authority stems from the new potential for asset forfeiture abuses that the Civil Asset Forfeiture Reform Act of 2000 aimed to limit. The new “bulk cash smuggling” provisions criminalize the unreported transportation of money outside of the country. Law enforcement successfully lobbied for “anti-terrorism” provisions to permit them to circumvent Eight Amendment protections against excessive fines here. Our current system of sharing financial information with other nations does not to protect the security of the American people but does damage their financial privacy rights. Efforts should be made to increase safeguards to prevent information from being used by parties hostile to U.S. security interests, or for other inappropriate purposes.

The combining of authority and responsibility between federal and state (and local) law enforcement agencies blurs Tenth Amendment safeguards. Various National ID proposals are one indication that our Constitutional roles are being denigrated. The attempt by federal officials to “standardize” state drivers’ license standards—and network their databases together and link them with those of the federal agencies—is a clear attempt to bypass long-established protections. Such nationwide indentification systems would not prevent terrorism, would depend on a massive bureaucracy that would limit our basic freedoms, and would direct resources away from other more effective counter-terrorism measures, would both contribute to identity fraud and make it more difficult to remedy, could require all Americans to carry an internal passport at all times, compromising our privacy, limiting our freedom, and exposing us to unfair discrimination based on national origin or religion.

The effect of standardizing procedures at a time of great technological change risks truncating the discovery process. The debate over biometric identifiers and the networking of databases only highlights that new capabilities from technological and other developments are constantly appearing. Adopting a single standard not only locks us in to a system that might or might not be the best system we could adopt now but it also locks us out of learning what applications of what new developments are best and should be more widely adopted. Allowing the states to act as laboratories of democracy better assures us of the benefits of discovering the best applications of new technologies. Networking the state driver’s license databases could create more problems than it would solve. The more databases are networked the greater the potential problem of misuse or other abuse of the sensitive data. Such “identification” systems may be more accurately considered as data collection systems and need to be debated accordingly.

We must be mindful that law enforcement and others use times of crises (real and exaggerated) to try to attain their long-held wish lists. In the case of the exclusion orders of the Japanese from the coast, it had less to do with military necessity than the anti-Japanese sentiment on the West Coast. Nearly all of the USA PATRIOT Act language was recycled from previous bills and other legislative proposals that had been debated and rejected. Unfortunately, many parts of it had little or nothing to do with protecting us from terrorism but represented long-held wish lists. During the previous Congressional debates over many of these provisions, law enforcement did not raise the importance of anti-terrorism to the initiatives. The case that these provisions, if they had been adopted earlier, would have prevented the events of 9-11 has not been made.

We need to better target our resources in such a way that we enhance both our privacy and security.