Just as one U.S. senator has started an effort to get rid of the sunset provisions on the counterterrorism USA Patriot Act, passed in response to the Sept. 11, 2001, terrorist attacks on the U.S., a couple of civil liberties groups urged congressional staffers to carefully weigh any expansion of police powers the U.S. government can use on its own citizens.
“There has to be some point where we draw a line and say we’re going to stop redrawing the line between liberty and security,” said Tim Lynch, director of the Project on Criminal Justice at the libertarian Cato Institute. Lynch was among the speakers at a Cato Institute briefing, attended by about 150 congressional staffers, lobbyists and members of the press, on Capitol Hill Monday.
“You’re never going to have the day come when Congress passes a law that says, ‘okay, starting now, we’re a police state, and law enforcement has every power we can think of,'” added Susan Chamberlin, Cato’s director of government affairs. “Instead, what we see is incremental upward adjustments in the power of law enforcement and the power of our military such that somebody born in the United States last week is born into a considerably less free, and arguably not more safe, United States than his parents.”
The USA Patriot Act, short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, breezed through Congress in less than a month during October of 2001. Among the provisions of the act: Internet service providers can allow government surveillance of “computer trespassers” without a judicial order, and government agents can collect information on a suspect’s Web browsing and e-mail, while the authorizing judge cannot turn down such a government request.
U.S. Senator Orrin Hatch, a Utah Republican, proposed last week to get rid of the sunset provisions in the Patriot Act, in which some provisions of the law would expire on Dec. 31, 2005, unless Congress re-approved them. Senator Patrick Leahy, a Democrat from Vermont, has promised to fight the Hatch amendment to a bill that would further expand government authority under the Foreign Intelligence Surveillance Act.
Calling the Patriot Act a “textbook example” of how not to make law, Lynch on Monday urged Congress to slow down when considering legislation that could affect civil liberties. The “gigantic, telephone book-sized” bills should be broken into smaller pieces for congressional consideration, he added, and sunset provisions should be employed often.
“There’s no reasonable objection that can be made, in my view, to breaking these things down into smaller parts and insisting on sunset provisions,” he said.
Lynch and James Dempsey, executive director of the Center for Democracy and Technology, both gave examples of problems within U.S. law enforcement agencies, then questioned whether an expansion of laws was justified if the U.S. government isn’t using its current set of tools to its best advantage. Lynch gave the example of news reports this month of two former U.S. Federal Bureau of Investigation (FBI) agents in California having sexual relationships with a Chinese double agent who’d come under suspicion years earlier.
“I take no civil liberties benefit or comfort in government inefficiency,” Dempsey said. “Maybe the worst you’re going to get then is this arbitrary, unpredictable kind of behavior.”
Neither Hatch’s office nor the Department of Justice, which oversees the FBI, responded immediately to phone calls seeking comment on the Cato event.
Congress needs to ask more questions of such legislation, Dempsey added, including a Patriot II Act reportedly being drafted in the U.S. Department of Justice. “Whenever a new proposal comes forward, we need to ask the question, ‘how is this going to make us safer?'” he added. “It’s incredible how little this question was asked in the fall of 2001, when this telephone book-sized legislation was presented. What in here would have prevented 9/11?”
In addition to the Patriot Act or another counterterrorism bill, Dempsey also questioned the effectiveness of the data mining of huge private databases, as proposed under the Department of Defense’s Total Information Awareness research program and the Transportation Security Administration’s proposed second version of the Computer Assisted Passenger Prescreening System (CAPPS II). It’s easy for Amazon.com to predict book-reading behavior because it has millions of customers to compare against each other, but law enforcement agents don’t have millions of terrorists to use as predictors of terroristic behavior, Dempsey said.
Lynch suggested Congress, instead of expanding law enforcement powers, should pump up the U.S. civil defense system, including passing out the smallpox vaccine to the general public, rethink the nation’s “cozy” relationship with Saudi Arabia and work on better coordination between police and fire departments.
“The things that we call our civil liberties are not what is wrong with our society,” Dempsey added. “Not only do they not hinder our antiterrorism programs, but actually respect for civil liberties, a concept of checks and balances — these are the things that help us develop an effective counterterrorism program.”
