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November 26, 2002 8:30 a.m.
The Federal Eye
Why civil libertarians are concerned.
By Robert A. Levy

When a former Iran-Contra defendant gets appointed to run a little-known Defense Department operation called "Total Information Awareness," then posts a sign on his office stating that "Knowledge Is Power," civil libertarians, not surprisingly, are exercised. Admiral John Poindexter may be suited for the job, but is the job suited for a free society that has, until recently, fastidiously safeguarded the privacy of its citizens?

Reportedly, the new system will use high-tech "data mining" to gather information from multiple databases, link individuals and groups, and share information efficiently. Never mind that Pentagon computer scientists believe that terrorists could easily avoid detection, leaving bureaucrats with about 200 million dossiers on totally innocent Americans — instant access to e-mail, web surfing, and phone records, credit-card and banking transactions, prescription-drug purchases, travel data, and court records.

If Total Information Awareness were the first and only budding threat to civil liberties, opponents might be less apprehensive. But against a backdrop of multiple laws, executive orders, and proposals — all potentially troublesome to hardcore Bill of Rights devotees — our constitutional watchdogs are justifiably uneasy. Here are a few of their grievances:

The USA PATRIOT Act: Ordinarily, advance judicial authorization of executive actions, followed by judicial review to assure that officials haven't misbehaved, shields us from excessive concentrations of power in a single branch of government. Under the PATRIOT Act, however, the executive branch has overwhelming if not exclusive power. Judicial checks and balances are conspicuously absent.

Expansion of the FISA court's authority: The Foreign Intelligence Surveillance Act created a court that approves electronic surveillance of citizens and resident aliens allegedly serving a foreign power. Previously, the FISA court could act if foreign intelligence was the primary purpose of an investigation. Now, foreign intelligence need only be "a significant purpose." That is not a trivial change. It means easier government access to personal and business records, and relaxed authorization of Internet surveillance and wiretaps — even in criminal cases.

Domestic detention of non-citizens: Soon after 9/11, about 1,200 non-citizens were detained in secret without evidence linking a single one of them to al Qaeda. The recurring questions were pretty basic. How many remained in custody? Who were they? What were the charges against them? What was the status of their cases? Where and under what circumstances were they being held? The Justice Department adamantly refused to provide any answers.
Secret INS trials: Hundreds of deportation hearings have been held in secret by the Immigration and Naturalization Service — without a jury, and without access by the defendant to legal counsel. The U.S. Court of Appeals for the Sixth Circuit accused the INS of operating "in virtual secrecy in all matters dealing, even remotely, with national security." The court warned, "Democracies die behind closed doors."

Detention of U.S. citizens: The administration has unilaterally declared that two U.S. citizens are "enemy combatants," whisked them away, detained them indefinitely in a military brig, denied them legal counsel, filed no charges whatever, and prevented them from seeking meaningful judicial review.

Monitoring attorney-client communications: Attorney General John Ashcroft, armed only with "reasonable suspicion" that a communication would "facilitate acts of terrorism," invented Justice Department authority to monitor talks between detainees and their lawyers, without a court order, despite constitutional guarantees of an unimpeded right to counsel.

Military tribunals: The Bush executive order on military tribunals fell short in three respects. First, tribunals should be convened only outside the United States. Here, our criminal courts are a perfectly acceptable venue. Second, tribunals must be limited to prosecuting unlawful combatants, not merely someone tangentially related to international terrorism. Third, tribunals should be congressionally authorized, not decreed by the executive branch.

Terrorism Information and Prevention System: TIPS was the administration brainchild that would have transformed us into a nation of busybodies and snoops. About eleven million informants — especially mail carriers, utility employees and others with unique access to private homes — were to help the Justice Department build yet another database containing names of persons not charged with any wrongdoing.

Of course, advocates of expanded executive power remind civil libertarians that President Bush is an honorable man who understands that the Constitution is made of more than tissue paper. That argument is simply not persuasive — even to those who fervently share its underlying premise. The policies that are put in place by this administration are precedent-setting. Bush supporters need to reflect on the same powers in the hands of his predecessor or his successors.

Here's the guiding principle: In the post-9/11 environment, no rational person believes that civil liberties are inviolable. After all, government's primary obligation is to secure the lives of American citizens. But when government begins to chip away at our liberties, we must insist that it jump through a couple of hoops. First, government must offer compelling evidence that its new and intrusive programs will make us safer. Second, government must convince us that there is no less invasive means of attaining the same ends. In too many instances, those dual burdens have not been met.

If administration critics have a single overriding concern about policies adopted in the wake of 9/11, it is this: The president and the attorney general have concentrated too much unchecked authority in the hands of the executive branch — compromising the doctrine of separation of powers, which has been a cornerstone of our Constitution for more than two centuries. Those persons who would unhesitatingly tradeoff civil liberties in return for national security proclaim that concentrated power is necessary for Americans to remain free. Yet there's an obvious corollary that's too often missed: Unless Americans remain free, they will never be secure.

— Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.