Terrorible Law
By John Nichols*

Posted 28/10/2001

"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.

* John Nichols, The Online Beat at http://www.thenation.com/thebeat/