'Anti-Terror' Legislation Undermines Constitution

Under the guise of fighting terrorism, Congress is stripping Americans of precious constitutional protections.

Terrorists are already accomplishing a major goal: under the banner of America's new "war," Congress is sending Big Brother into your home, your workplace and even into your personal life.

The Senate gave final approval of the anti-terrorism measure Oct. 25 with a lone dissent by Sen. Russ Feingold (D-Wis.) a day after the House approved it 357-66. President Bush signed it the following day.

Dissenting lawmakers said the legislation is so broad and vague that federal agents could prosecute Ameri cans for protesting NAFTA or the World Trade Organization-an obvious prostrating of the First Amend ment's free speech protections.

There was one significant victory that makes bad law just a little less bad: a provision to include the Internal Revenue Service into new "information-sharing" provisions was struck from the bill, Sen. Feingold's office said.

This means, Feingold's spokesman said, the IRS can provide no information to the FBI, CIA or other federal agencies. Nor can the IRS obtain information from other agencies, the spokesman said.

"There is no doubt that if we lived in a police state, it would be easier to catch terrorists," Feingold said in fighting the bill on the Senate floor.

"If we lived in a country that allowed the police to search your home at any time for any reason, that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications…that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists," Feingold said.

"But that probably would not be a country in which we would want to live," Feingold said. "And that would not be a country for which we could, in good conscience, ask our young people to fight and die for. In short, that would not be America."

The new law contains significant changes in criminal procedure that will apply to every federal criminal investigation, not just those involving terrorism.

The law greatly expands the circumstances in which law enforcement agencies can search homes and offices without first notifying the owner.

"The longstanding practice under the Fourth Amendment of serving a warrant prior to executing a search could easily be avoided in virtually every case, because the government would simply have to show that it has 'reasonable cause to believe' that providing notice 'may' 'seriously jeopardize an investigation," Feingold said.

Notice is a key Fourth Amendment protection because it allows a person to point out mistakes and to make sure the search is limited to the terms of the warrant. There are cases when lawmen have the wrong address on a warrant, for example.

"If you're not at home, and police have permission to do a 'sneak and peek' search, they may come to your house, look around and leave and may never have to tell you," Feingold said.
In an effort to fight computer crime, the law allows lawmen to monitor a computer with the permission of its owner or operator. That's fine insofar as helping to catch computer hackers or "trespassers."

But a person at a school or library who stumbles onto a gambling or pornographic site in violation of the policies of the library or school "might also be subjected to government surveillance-without any probable cause and without any time limit," Feingold said.
Also, if law enforcement suspects a purported terrorist is using a computer in a public place such as a library to access emails or the Internet, investigators can get permission to monitor that computer regardless of who is using it.


There is subtle mischief in a portion of the law that amends the Foreign Intelligence Surveillance Act, or FISA. When passed in 1978, it granted government the power to conduct surveillance in foreign intelligence in ves ti gations without meeting the Fourth Amend ment's probable cause standard.

The threshold was lowered because the government was not investigating a crime but investigating foreign intelligence activities. The law, in embracing a lower standard than required for criminal investigations, required that the primary purpose be intelligence gathering.

The new law changes that standard. The government now will only have to show that intelligence is a "significant purpose" of the investigation. Thus, even if the primary purpose is a criminal investigation, the Fourth Amendment standard is dumped by calling intelligence gathering "significant."

The law permits the government to compel the production of records from any business regarding any person under the flimsiest pretense of terrorist hunting. The government can compel the disclosure of personal records of anyone who, by chance, lived near, worked with, attended school with or sat on a plane with a terrorist suspect.

FISA already gave the FBI authority to get airline, train, hotel, car rental and other records of suspects. Under the new legislation, all business records can be compelled, including sensitive information like medical records from hospitals or physicians, education records or records of books an individual has checked out of a library.

"This is an enormous expansion of authority, under a law that provides only minimal judicial supervision," Feingold said of the provisions. "The government can apparently go on a fishing expedition and collect information on virtually anyone."

Another provision "allows the detention and deportation of people engaging in innocent associational activity," Feingold said.

Victims could be people who provide lawful assistance to groups not designated by the secretary of state as terrorist organizations but have engaged in some vaguely defined "terrorist activity" in the past.

"Groups that might fit this definition could include Operation Rescue, Greenpeace and even the Northern Alliance fighting the Taliban in Afghanistan," Feingold said. "This provision amounts to 'guilt by association,' which I believe violates the First Amendment."

Feingold saw another First Amendment problem:

"A lawful permanent resident who makes a controversial speech that the government deems to be supportive of terrorism might be barred from returning to his or her family after taking a trip abroad."

Left-wing populist Rep. Bernie Sanders (I-Ver.) shared Feingold's concerns:

"The bill has a definition of 'domestic terrorism' that is so broad that it could allow the federal government to prosecute political protesters who disagree with the WTO, NAFTA, etc."

Sanders said that when lawmen tap a public phone used by a suspected terrorist they could continue to eavesdrop on conversations of subsequent callers.

A small victory came when the House forced a "sunset" provision in the legislation. Many of these provisions expire in four years unless Congress approves them again.

The administration wanted all provisions to be permanent.