"We're likely to experience more restrictions on personal freedom than has ever been the case in our country," Supreme Court Justice Sandra Day O'Connor grimly warned a group of NYU law students after visiting the mangled tomb that was once the World Trade Center. O'Connor's calm acceptance of the proposition that the terrorism crisis means unprecedented incursions on civil liberty--which, given her position on the Court, puts her in a position to be a self-fulfilling prophet--sounds extreme. But it's a prediction firmly grounded in the aspirations of the Bush White House. In contrast to the deliberation that has, so far at least, marked the Administration's military response to the WTC/Pentagon conspiracy, Attorney General John Ashcroft rushed to Capitol Hill with a hodgepodge of legislation to grant the FBI, INS and federal prosecutors powers to spy, jail and interrogate far greater than in any past war or national emergency.
In the days after September 11 it seemed a sure wager that Ashcroft's plan would pass Congress as swiftly as the Pearl Harbor war declaration. G-men would be out with a virtually unlimited license to detain immigrants and round up e-mail. The surprising thing is that for weeks, Congress forcefully resisted the Administration's proposals. By early October Ashcroft was fuming over a House compromise limiting the scope of his most coercive measures. In the Senate, Judiciary Committee chairman Patrick Leahy stood his ground so stubbornly that finally the White House pressured majority leader Tom Daschle into telling Leahy he would bring the bill to the floor without Judiciary approval. Leahy's committee finally voted a compromise bill of its own--in some respects weaker than the House version. By the end of the first week in October both the House and Senate bills were headed for floor votes, though there was still the possibility of some amendments. Why Ashcroft's plan was greeted with such reluctance, and the considerable dangers that still remain, are crucial to understanding what remains a uniquely perilous moment for the Bill of Rights.
Within hours of the Twin Towers' collapse, federal officials were already declaring that the war on terrorism would require new powers. In fact, they were mainly not new powers, but easements the FBI and federal prosecutors have sought for years: cutting judges' review of wiretap orders, opening access to supposedly secret grand jury evidence, detaining undocumented immigrants indefinitely and without appeal. Each year since the Oklahoma City bombing of 1995, Congress has rejected such plans. But the World Trade Center conspiracy seemed, at first, to change the political calculus--a notion with history very much on its side, a series of panics over foreign conspiracy going back to 1798, when whiffs of French revolutionism overwhelmed John Adams's Federalists, who responded by jailing newspaper editors and throwing out immigrants.
For civil libertarians, the political risk was all the greater because this is no imaginary conspiracy. The September 11 attack was murderous, the threat of future violence significant. Civil libertarians cannot casually dismiss the shocked public's hunger for security. Thus the ACLU calls its campaign against Ashcroft's package "Safe and Free," and director Anthony Romero praises Bush Administration plans to require hardened doors in aircraft cockpits; Ralph Neas, president of People For the American Way, calls for "acting appropriately to prevent future such attacks."
But what is "acting appropriately"? Regardless of the final legislation that passes Congress, Attorney General Ashcroft's initial answer--that sweeping law-enforcement wish list covering everything from credit reports to education records--is worth reviewing for what it reveals about the Administration's priorities. Take immigration, for instance. Within days of the World Trade Center and Pentagon attacks, President Bush won plaudits from Muslim-American groups for speaking clearly and loudly against harassment. Bush visited a mosque, and Ashcroft directed the FBI to treat harassment as a hate crime. At the same moment as these symbolic gestures, though, Ashcroft was moving his proposal that would substantively and vastly erode the rights of all immigrants--and, under the current political circumstances, Muslims in particular. After the Oklahoma City bombing, Congress created secret terrorism courts for foreign "terrorist suspects." Ashcroft's new plan goes a step further, skipping the trial altogether: He wants the right to detain foreign "terrorist suspects" indefinitely, with appeal possible only when a suspect faces deportation. "These actions offend the Constitution," says the ACLU's Romero, "and are an affront to millions of law-abiding immigrants in our country as well as millions of other citizens who are the sons and daughters of immigrants."
With wiretapping, the Administration has played a similarly canny game. After September 11 Ashcroft leapt into the breach with a proposal to allow a single wiretap warrant to authorize listening in on all phones and electronic communications of one individual. He described this as a "modest" attempt to bring wiretap law in line with an era of mobile phones. The media played it that way. In fact, as James Dempsey of the Center for Democracy and Technology puts it, this, along with other wiretap provisions proposed by Ashcroft, would "create a more intrusive form of surveillance." Most radical of all, Ashcroft proposed allowing prosecutors to share information from grand jury proceedings with FBI agents in other investigations. This plan, which turns on its head the historic purpose of the grand jury as a protection against prosecutorial excess, still appears likely to pass the House--though perhaps requiring court approval, despite Ashcroft's vociferous objections.
With the country still swept by grief and anger, how did members of Congress find the wherewithal to stand up to Ashcroft? Part of the answer may lie in early leadership from a few senators like Joseph Biden, who on September 11 was already warning of the danger of overreaction. In part it is an accident of history: this year's narrow Democratic control of the Senate, putting the stalwart civil libertarian Leahy instead of Orrin Hatch in charge of the Judiciary Committee. Some in Congress, sources suggest, took it as a personal affront that the Bush Administration was using the crisis to push legislation they had already opposed. Most of all, it's the product of an unusual coalition between liberal civil liberties organizations, computer advocates concerned about Internet privacy and gun-lobby libertarians like Representative Bob Barr, whose sense of government's capacity to abuse its power was heightened by Waco and Ruby Ridge. Barr, a former federal prosecutor, repeatedly warned against gutting the Fourth Amendment.
On Capitol Hill, skepticism of Ashcroft's plan grew as emerging details of the conspiracy began to suggest that none of his proposals would likely have made much difference. To the contrary, the plan appears more and more to be a fig leaf covering significant failures by federal agencies to communicate and act within their current authority. Those deadly box cutters and useless pilot-cabin doors are the result of air security rules more friendly to airlines' bottom lines than passenger safety. Mohammed Atta was on the State Department's terrorist watch list, but no one was watching as--like all the conspirators, apparently--he entered the United States legally and crisscrossed the country by airplane and rental cars under his own name. Word from police in Hamburg, Germany, where Atta and five other hijackers apparently lived, of a plan involving the World Trade Center never made it across the turf boundaries of US law-enforcement agencies.
Even in its compromise House and Senate versions the terrorism bill remains a dangerous package. The wiretap proposal is included nearly intact, except for a two-year limit, after which it must be reauthorized. (Ashcroft, not satisfied, is now lobbying Congress to remove that two-year sunset provision with the argument that terrorism will take more than 24 months to extinguish--as if legislators would not review the bill in a heartbeat. What he really objects to is the Congressional oversight that the two-year review would require.) Immigrants still face up to seven days' detention without charge if they are deemed "terrorist suspects."
The greatest danger in the Ashcroft package--and in the post-September 11 climate generally--has received virtually no attention. It is the question of definition. What is terrorism, and what is a terrorist? With the World Trade Center still smoldering, the answer seems obvious. Yet history teaches that the definition of terrorism is very much a matter of time and place and who is doing the talking. As recently as the 1980s, the FBI spied extensively on the Committee in Solidarity with the People of El Salvador and other dissidents from Central America policy under the terrorism rubric. Nelson Mandela's African National Congress was designated a foreign terrorist organization for decades; Bill Clinton rattled the Foggy Bottom establishment by taking Northern Ireland's Sinn Fein off the terrorism list, allowing Gerry Adams a US visa. There are elderly ladies in Tel Aviv who once built letter-bombs for the Haganah.
The point is simply that terrorism is a term of politics rather than legal precision. But in Ashcroft's vision, it appears to be a label to be applied indiscriminately. Ashcroft's initial bill defined terrorism as any violent crime in which financial gain is not the principal motivation. The House adds more precise language: To qualify, crimes or conspiracies must be "calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct." Yet even this definition is big enough to drive a parade wagon through. An unruly blockade of the World Trade Organization could bring down the full force of antiterrorism law as easily as could a bombing.
That is the real point. The antiterrorism debate is not just about the WTC/Pentagon attacks, and it involves far more than the language of Ashcroft's package. It is also an attempt to "normalize" entirely new surveillance, intelligence-gathering and arrest powers--measures already employed with increasing vigor against corporate-globalization protesters. It is about a culture of civil liberties, not just law; about what it means, for instance, when the White House spokesman warns Politically Incorrect's Bill Maher and others to "watch what they say" when criticizing US military policy.
The real and elusive threat of future Al Qaeda atrocities is unquestionably a challenge in an open society. It's clear that government needs to utilize all its constitutional powers in realistic protection of the public. But what the Bush Administration is pushing through Congress--though not without resistance--is something different, first named in the 1970s by civil liberties scholar Frank Donner: surveillance "as a mode of governance," rather than as a limited and accountable tool of criminal investigation. Whatever particulars of the Ashcroft plan pass, we will likely be living under that mode of governance for some time.