Commentary

Will the War Kill the Bill of Rights?

Congress recently passed massive “terrorism” bills that had never received committee hearings. Indeed, the House bill was only introduced on the morning that it passed — providing House members with no realistic opportunity to study the bill’s tremendous implications. Both the House and the Senate bills grant vast powers to law enforcement that have nothing to do with counter-terrorism.

Because the House and Senate bills differ, a conference committee is being appointed, which will start meeting soon.

The House Judiciary Committee had unanimously passed an anti-terrorism bill, which awaited House floor action. But instead of bringing forward the bill that had received committee scrutiny, the House leadership (buckling to pressure from the administration) had a brand-new bill written and brought to the floor of the full House. The leadership moved so hastily that members were deprived of the opportunity even to read the bill before voting on it.

The House bill does include some sensible provisions to help the government fight terrorism, such as expediting the hiring of language translators for counter-terrorism work.

But there are also provisions that seriously infringe privacy, while offering little in the way of counter-terrorism. For example, the bill allows the government, without a warrant, to monitor every e-mail that a person sends and receives. Content access would, however, require a search warrant — although in practice the government would be on the honor system not to read content. Any state, local, or federal law enforcement officer could use the e-mail surveillance. And there is no requirement that this surveillance be connected to a terrorism investigation.

Currently, if the government wants to monitor a person’s postal mail, the feds have to get a search warrant. Why should we lower privacy standards because the mail is sent electronically rather than by hand?

The House bill also allows surveillance of a person’s Internet surfing. The government can capture the web address of every page that a person views — without a search warrant. This allows any law officer to find out intimate details about a person’s politics, hobbies, and even sexual orientation. There is no requirement that this surveillance be related to counter-terrorism.

Significantly, the bill sunsets some (but not all) of the expanded government surveillance provisions after three years. This is a sensible recognition of the fact that the executive branch is asking for extraordinary wartime powers. If the war hasn’t ended in three years, Congress is capable of enacting legislation to extend the powers.

The Senate bill — 243 pages — is much worse than the House bill. The former’s expansions of government power are permanent. Given that the bill will restrict the freedom of people born 50 years from now, it is inappropriate for the bill to be rushed through Congress only a few days after being written.

The Senate bill allows the government to conduct secret searches. This measure is not limited to terrorism cases. Rather, it would apply to federal government searches involving drugs, pornography, gambling, and everything else in the federal criminal code.

The federal government could covertly enter a person’s house, copy the contents of his computer, and then break in the next month, and copy the hard disk again. To perform secret searches, the government would merely have to show that there “might” be an “adverse result” if the person found out about the search.

Of all the checks and balances in the Fourth Amendment, the most important is that the person who is searched knows that he has been searched. More so than any other person, he will have the incentive to complain (and, if necessary, to sue) if the search was in violation of the Constitution. Because judges don’t come along when the police serve search warrants, judges have no practical way of knowing whether a search is conducted within the limits of the search warrant. In essence, secret searches put federal agents on the honor system.

While the solid majority of federal law enforcement agents are honorable, some are not. And the records of the FBI, the DEA, the ATF, and the rest of the federal law enforcement bureaucracy over the past decades demonstrate that when power can be used, some agents will abuse it.

Both the House and the Senate contain many laudable, and uncontroversial measures, such as providing assistance to the families of police and firefighters who died on Sept. 11. Congress would do better to quickly pass the measures that do not infringe civil liberty, and then take time to ensure that new restrictions on liberty are no broader than necessary, and that they apply only to terrorism investigations.

David Kopel is a fellow at the Cato Institute.