Slowing the Ashcroft Act


The terror of September 11 has set the stage for a profoundly un-American legislative response: passing bills into law hastily and without debate. In Washington as in Albany, freneticism has taken hold of lawmakers.

On September 16 at 9 p.m., New York State legislators met in a special session to consider proposed anti-terrorism legislation that had, until the air attacks of that week, been gathering dust in a Senate committee. Less than 24 hours later, without public discussion, negotiation, or so much as one letter from a constituent, the New York State Anti-Terrorism Act of 2001 became law.

“They rushed to judgment,” says Donna Lieberman, interim director of the New York Civil Liberties Union. “They overreacted.” The law applies the death penalty to terrorist crimes—a change that allows for vengeance, but will likely do little to discourage future suicide missions. A provision that particularly concerns Lieberman broadens the definition of terrorism to include people who intend to change government policy—even if that government is our own. Citizens should fear “the inappropriate and unconstitutional use of that provision to discourage free expression,” she says.

Down in Washington, just two days after the crisis began, the Senate voted in the middle of the night to broaden wiretapping laws. But that was only the beginning. If Attorney General John Ashcroft had had his way, the largest piece of legislation—the Anti-Terrorism Act of 2001, or ATA, a broad package of proposals that would affect everything from Internet use to immigration rights, criminal procedure, and trade sanctions—would also have sailed through without argument. On Monday, promoting the bill before the House Judiciary Committee, he declared: “We need to unleash every possible tool in the war against terrorism and do so promptly.”

The committee’s members, however, rose up to demand proper debate—and the bill that was expected to be quickly rubber-stamped is now likely to receive at least another week of discussion.

Ashcroft has assured the public that the legislation is “consistent with the constitution.” But critics find little reassurance in a man who has supported the government’s authority to conduct secret searches, censor the Internet, and arrest flag burners even in times of peace.

Over the past week, lawmakers and outspoken citizens began a struggle to put on the brakes against such infringements. A coalition of more than 150 groups, including Gun Owners of America, the American Civil Liberties Union, the Arab American Institute, and the Eagle Forum, warned against surrendering basic freedoms during a moment of crisis.

At the Judiciary Committee hearing, Representative Barney Frank reminded listeners that government powers have been dubiously invoked against America’s most progressive movements—as when the FBI’s J. Edgar Hoover authorized surveillance of Martin Luther King Jr. Lifetime NRA member Bob Barr and liberal Democrat Maxine Waters found themselves united in their concern about the bill’s broad reach.

Some have suggested that the most troubling elements of the law might be curbed by a built-in time limit, but a so-called “sunset provision” isn’t expected to make it into the final bill. Nor do lawmakers seem likely to pursue a recommendation to split the legislation into two bills, so that the less controversial provisions could be “fast-tracked” and the others mulled over more slowly.

Even with the delay, a version of the ATA is bound to become permanent federal law. With more than 6000 presumed dead, even those who usually show an instinctive support for civil liberties are tempering their criticism: “If these proposals had been made three weeks ago, we would have said ‘no way,’ ” says Meredith McGehee, vice president for legislation at Common Cause. “Now it’s a new day. We acknowledge a need for a new balance between government power and civil liberties.”

How that balance will look will depend on the response of legislators and concerned citizens within the coming days. Below, an examination of the most controversial elements in the latest version of the still evolving anti-terrorism bill.

DEFINITION OF TERRORISM: The ATA expands the description of terrorism to encompass minor offenses, including attacks on property and a wide range of behaviors. Under the new law, a college student who breaks the window of a federal building during a political protest could wind up sentenced to life in prison. “Even kids carrying Boy Scout knives who vandalize traffic signs can be labeled terrorists,” says Eric Sterling, president of the Criminal Justice Policy Foundation, a Washington nonprofit.

IMMIGRATION: Perhaps the most frightening change to immigration law would allow the U.S. to deport or indefinitely detain immigrants who “may endanger the national security” without a judicial hearing. “The standard is very flimsy,” says Tova Indritz, chair of the Immigration Committee of the National Association of Criminal Defense Lawyers. Law enforcement officials would no longer need to charge legal immigrants with a crime or go before a judge to deport them. “They don’t even need proof,” says Indritz, “just ‘reason to believe’ that a person may further any activity that endangers our national security.”

EXPANDED WIRETAP AUTHORITY: The latest draft of the ATA contains more than a dozen proposals that would significantly affect intelligence gathering, expanding access to everything from business to education records. Among the most troubling to privacy advocates is one that would apply old wiretap law to computers, allowing the FBI greater access to information about credit cards, bank transactions, Internet searches, and records of Web sites visited. The provision would leave every American’s computer records vulnerable—not just those of terrorism suspects, according to Mark Lloyd, executive director of the Civil Rights Forum on Communications Policy. “Government agents won’t know which specific Americans’ computers to look at,” says Lloyd, “so they’ll look at everything.” The new law would also allow any U.S. attorney to authorize an emergency tap without approval by a judge, which is now required.

FISA SURVEILLANCE: The law would expand surveillance under the Foreign Intelligence Surveillance Act, or FISA. Not surprisingly, immigrants would be the most at risk. Since 1979, a secret court in Washington has issued more than 10,000 FISA warrants allowing the monitoring of subjects’ phone calls and e-mail. (Only once in this time has a FISA warrant request been denied.) If the bill passes as is, the number of people subject to FISA surveillance will likely shoot up—and include a broad swath of probable innocents, including U.S. citizens, legal aliens, foreign students, and those who work for foreign governments in this country.

SHARING FOREIGN INTELLIGENCE: Another ATA section would allow the U.S. to use wiretapped and electronic information gathered by foreign governments using search and seizure practices that are illegal in the United States. “This is a way for the U.S. criminal authorities to let foreign governments do the dirty work and then hand over the fruits of unlawful surveillance,” says Lee Tien, senior staff attorney for the Electronic Frontier Foundation.

SEIZURE OF ASSETS: Another ATA provision, which has been repeatedly rejected by lawmakers in the past, would give the government broad authority to seize the property of someone accused of a crime. The change would apply not just to terrorists, but also to criminal defendants and would be invoked before they are proven guilty. If this passes, the government would be able to seize people’s cars or houses before proving they committed crimes.

SUPPORT OF ORGANIZATIONS: As proposed, the bill would allow people to be deported for supporting the activities of “terrorist organizations,” even if those organizations were not considered “terrorist” when the support was given. For example, the ACLU says, a legal alien could be deported today for having lawfully contributed in the past to an organization such as the African National Congress, which used both military and nonviolent tactics.