WASHINGTON — In the wake of 9/11 the Department of Justice began
asking for more and more “tools” to aid law enforcement agencies
in their effort to identify potential terrorist threats and, as
Administration spokesmen like to put it, “protect the American
homeland.”
No conservative can disagree with the goal and virtually all of
us understand the need to give those charged with the job of
rooting out terrorists and preventing them from achieving their
goals within our borders the tools they need to do their job, but
many are beginning to question whether they have thought through
the impact on privacy and constitutional rights of many of the
“tools” they have acquired since 9/11 and are requesting today.
Increasingly, conservatives we talk to outside Washington express
real concern about providing Federal law enforcement with more
power in the name of national security. They fear that the
“tools” the government seeks to protect us from our enemies could
eventually be used to circumscribe our own liberties. Given the
maneuvering over H.R. 3179, they have good reason for concern.
H.R. 3179 is the latest attempt to expand the scope of the
PATRIOT Act even before it is clear that all the current PATRIOT
Act powers are necessary and being used appropriately. Despite
the unanswered concern, key Congressional leaders resorted to
stealth tactics late last year to attach a measure to the 2004
Intelligence Authorization bill that drastically increased the
power of the FBI by allowing the agency to demand records from
car dealers, pawnbrokers, travel agents, and other businesses
without the approval of a judge or grand jury. Neither the House
nor the Senate debated this measure; the real action happened
behind closed doors.
The same thing appears to be happening to H.R. 3179 — the
Anti-Terrorism Intelligence Tools Improvement Act of 2003. House
leaders planned to rush the bill to the House floor for approval
without any real debate until a coalition of groups ranging from
the American Civil Liberties Union to the Free Congress
Foundation and the American Conservative Union raised a ruckus.
At that point, Rep. Jim Sensenbrenner, chairman of the House
Judiciary Committee, whose name appears on the bill with that of
Porter Goss, the chairman of the House Intelligence Committee,
decided that perhaps it deserved a hearing in subcommittee before
being voted on.
EVEN THE MOST CURSORY of examinations reveals that H.R. 3179
would expand PATRIOT powers without including any built-in
measures to provide accountability and oversight. One of its most
troubling provisions involves new powers for searches ordered by
National Security Letters. These can be used to demand access to
individual or business records even where there is no showing of
individual suspicion. There is no way for either the target of
the investigation nor those on whom the letters are served can
challenge them as overbroad. The statute, in fact, makes it a
crime for a recipient from raising alarms in the press, or even
with the Inspector General of the Department of Justice or the
relevant congressional committees that should be exercising
oversight of this provision.
Another provision of H.R. 3179 restricts the power of a judge to
decide whether the admission of classified information in
criminal cases is warranted. The government request that such
evidence be allowed would be made without opposing counsel
present and doesn’t even have to be in writing. In his testimony
at the House hearing, former U.S. Rep. Bob Barr, who served on
the Judiciary Committee while in Congress and is both a former
U.S. Attorney and CIA official, said this provision “represents
an incremental shift of power away from the court and towards the
prosecutor. Congress should hear much more from both prosecutors
and defense lawyers with experience in this area before making
such a change, in order to determine whether the effect may be
much larger than intended.”
These are only two of the changes sought by H.R. 3179. Neither of
them by themselves is going to make many Americans lose much
sleep, but when combined with the other “tools” being acquired by
law enforcement they should. The hearings on this legislation
were never completed. They were suspended early to allow its
members to participate in roll call votes on the House floor and
have yet to be reconvened. If history repeats itself, they may
never be resumed, as many observers believe that H.R. 3179 will
be slipped into the 2005 Intelligence Authorization bill where it
can be expected to receive little scrutiny or debate.
Conservatives should be concerned about all this. The fact that
key Congressional leaders are maneuvering to enhance the power of
the Executive Branch without providing for adequate debate over
appropriate measures for oversight and accountability is
disturbing enough. It was James Madison in Federalist 58 who
stated that we did not fight for an “elective despotism” but one
in which the powers of government were divided between the
different branches of government so that “no one could transcend
their legal limits without being effectively checked and
restrained by the others.” However, by Congress’s granting great
power — without checks and balances — to the Executive Branch,
it is abdicating its own responsibility and encouraging future
abuses by Federal law enforcement agencies.
CONSERVATIVES WELL KNOW that a government bureaucracy’s appetite
for power is never sated. Left unchecked, it will push the
limits, mindless of the cost to our freedom. Already, there is an
effort underway in Congress to remove the existing sunset
provisions to the PATRIOT Act even though the Government
Accounting Office in a 2003 report raised questions about whether
the Act’s powers were being misused to fight not terrorism, but
run of the mill crime.
While most Americans are unlikely to find themselves part of an
investigation involving terrorism, they should know that these
new “tools” are already being creatively used by U.S. attorneys
from one end of the country to investigate very ordinary criminal
acts and citizens who don’t realize that the privacy and
constitutional safeguards they once took for granted are already
being eroded.
There are those who perhaps overstate the threat, but that
doesn’t mean it isn’t real. That’s why Congress should draw the
line between the “tools” law enforcement really needs and those
the law enforcement bureaucracy would simply like to have. At the
very least, Congress should resist the temptation to approve law
enforcement’s newest requests without at least ascertaining that
the “tools” it already has are needed for the job and are being
used as Congress believed they would when they were approved.
