10/2/2001 12:00:00 AM - Jacob Sullum
"Freedom itself was attacked this morning," President Bush declared on Sept. 11. Many have echoed him in the weeks since then, arguing that the terrorists behind the attacks despise our way of life, which they seek to disrupt by inciting fear.
Their success hinges not only on how we respond as individuals -- whether we go about our business undeterred -- but on how our government responds. If it rushes to adopt authoritarian measures in the name of fighting terrorism, "freedom itself" could be added to the list of casualties.
Congress's performance so far has not been encouraging. Two days after the attacks, the Senate approved legislation to expand the government's wiretapping authority. With just a half-hour of debate, several senators complained there wasn't enough time to read the bill, let alone give it thoughtful consideration.
To understand why the legislation needed more than a glance, consider a provision dealing with "pen register" and "trap and trace" techniques, which supply, respectively, the numbers dialed from a telephone and the numbers from which a telephone receives calls. Law enforcement agents use these techniques with little judicial oversight; they simply have to certify that the information they're seeking is "relevant" to an investigation.
The Senate approved language that broadens this category of surveillance to include the interception of "dialing, routing, addressing and signaling information" related to electronic communications. Ostensibly, the new definitions simply update the law to take account of the Internet, but the information they cover is more extensive than what can be obtained with traditional pen register or trap and trace methods.
For one thing, e-mail addresses tend to be more specific than telephone numbers, indicating particular individuals rather than locations. Furthermore, the new language is so broad that it could cover the subject headers of messages you send or receive and the addresses of Web pages you see, possibly including those generated by search engine requests.
It seems doubtful that every senator who voted for this expanded authority carefully weighed the loss of privacy it would entail and decided the sacrifice was justified. Despite its reputation as a less deliberate body, the House has proved more cautious about trading civil liberties for promises of greater security.
The White House presented its anti-terrorism package barely a week after the attacks, and Attorney General John Ashcroft insisted that it needed to be passed right away. The House Judiciary Committee nevertheless postponed consideration of the administration's proposal until early October.
The most widely criticized element of the legislation would authorize indefinite detention of noncitizens whom the attorney general deems "a threat to national security." But the bill also contains less obvious threats to civil liberties, including wiretap provisions similar to those approved by the Senate.
By giving intelligence agencies access to information "obtained as part of a criminal investigation," the bill would encourage spies to use cops as their proxies, undermining restrictions on domestic espionage. Similarly, by allowing U.S. prosecutors to use evidence obtained by foreign governments through means that would be unconstitutional here, the bill permits an end run around the Fourth Amendment.
Although the administration calls its proposal the Anti-Terrorism Act of 2001, some of its provisions have little or nothing to do with terrorism. For instance, the bill allows the seizure of a defendant's assets before trial, even when the assets are not connected to the alleged offense. It also authorizes the government to seek warrants for "sneak and peak" searches, conducted without notifying the target. Both sections apply to all criminal cases.
"Several of the most worrisome provisions," observes the Electronic Frontier Foundation, "appear to be part of a general law enforcement 'wish list' rather than a specific response to terrorism." Remarking on the Justice Department's attempt to hurry the process, Rep. Bob Barr, R-Ga., asked, "Does it have anything to do with the fact that the department has sought many of these authorities on numerous other occasions, has been unsuccessful in obtaining them, and now seeks to take advantage of what is obviously an emergency situation?"
In circumstances such as these, skeptics of state power like to haul out a famous remark by Benjamin Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." When it comes to deciding which measures will enhance safety and which aspects of liberty are "essential," of course, there is room for debate. At least, there ought to be.