More Surveillance Equals Less Liberty

September 10, 2003 • Commentary
This article was published in The Hill, Sept. 10, 2003

Now that two years have passed since the trauma of the Sept. 11 catastrophe, it is a good time to take a step back from the politics of the moment and take stock as to how our policymakers have responded to the threat posed by terrorism.

Sending American soldiers to Afghanistan was a decisive move by President Bush — because it was going right to the root of the problem, which is Osama bin Laden, his elite henchmen and his training camps.

The war on the home front also has been aggressive but in many ways misguided. The assumption has been that there was simply too much liberty and privacy in America — and that federal law‐​enforcement agencies did not have enough power. To remedy that perceived problem, policymakers rushed the USA Patriot Act into law.

The Patriot Act was designed to reduce privacy and increase security. It has succeeded in at least reducing privacy.

Financial privacy is essentially gone. The feds have turned banks, brokerage houses, insurers and other financial institutions into state informers. Those firms must notify the Treasury Department about “suspicious” transactions, and the government can subpoena your checking‐​account records even if there is no evidence of wrongdoing.

Even though the feds were notified about several of hijacker Mohammed Atta’s financial transactions before Sept. 11, no action was taken.

But in the logic of the public sector, that failure means the government was hobbled by insufficient money and insufficient power. Thus, the Treasury Department is now engaging in more surveillance.

Attorney General John Ashcroft says that all of the “safeguards of our Constitution” have been honored. But the Constitution’s most vital safeguard is the principle of the separation of powers, and it has been undermined repeatedly.

One of the most odious provisions of the Patriot Act is known as Section 215.

That provision empowers FBI agents to demand things from people in terrorism‐​related investigations.

Ashcroft and conservative analysts claim that the Patriot Act operates in a similar fashion to ordinary search warrants so there is nothing to worry about. Heather MacDonald of the Manhattan Institute, for example, says, “The FBI can do nothing under Section 215 without the approval of a federal court.”

In truth, the act creates a facade of judicial review. Here is the pertinent language: “Upon an application made pursuant to this section, the judge shall enter” the order.

That was crafty. Instead of enacting a law that says whenever an FBI agent wants to demand something from someone, he can do so as long as he is following leads in a terrorism investigation, the Patriot Act accomplishes the same end indirectly. The FBI can now use boilerplate forms and submit them to federal magistrates, who “shall” approve the applications.

The judicial check is not there. The judiciary cannot scrutinize the foundation for the Justice Department applications.

The impression is, in any event, false. The FBI can use Section 215 to obtain personal belongings — anything, really — directly from a person’s home.

To top it all off, Section 215 has a gag provision that criminalizes speech about 215 orders. So if the CEO of a telecommunications firm finds that his company is spending a million dollars a year to comply with Section 215 orders and wants to complain to Congress, he better not make that call or send that letter. Leavenworth awaits such a move.

The courts are not likely to abide by that blatant restriction of free speech, but it may take years for a definitive ruling on the subject.

In the meantime, only the FBI knows how many people will have been cowed into silence by 215.

Too many conservatives have brushed aside grievances about civil‐​liberties violations in the mistaken belief that President Bush’s political opponents are simply trying to dress up a partisan attack in noble‐​sounding rhetoric about liberty, privacy and the Constitution. The opposite is true.

President Bush and Attorney General Ashcroft have given their political opponents a just cause — namely, resisting the growth of a surveillance state.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice