Thursday, November 13, 2003
Copyright © Las Vegas Mercury

Local View: Anti-terrorism laws are decades in the making

By Richard Siegel

America's anti-terrorism laws have been primarily identified with the November 2001 USA PATRIOT Act. In the past week, reports have made clear that the act was misleadingly sold to the American people as a tool meant exclusively to fight terrorism. It is now evident that the law is actually being used in sweeping ways that go well beyond terrorists to threaten everyone's civil liberties.

We now know that the PATRIOT Act has been used to cut constitutional corners to investigate the financial activities of individuals whose dealings may somehow relate to high-profile political corruption investigations in Las Vegas. We also know the act has been invoked by banks demanding personal information from people belonging to homeowners associations with which they do business, informing them that the 2001 law requires that they be investigated to determine whether they are involved in "derogatory banking activities."

Playing fast and loose this way with the Constitution and the Bill of Rights unfortunately is nothing new. Fundamental rights of both American citizens and aliens have previously been compromised by legislation enacted since World War I, particularly since 1968 when the wars on crime and drugs superceded the one against international Communism. There have been dozens of draconian federal statutes and executive orders in areas such as foreign and domestic intelligence, immigration, the death penalty and restrictions on habeas corpus writs and access to courts, each contributing to the abuse of constitutional rights in scores of actual cases.

Congress passed repressive legislation continually under both Democratic and Republican administrations. The current war on the rights of Americans as well as our noncitizens is the culmination of the anti-Communist crusades of the 1940s and '50s, the establishment of the national security state during and after World War II and the more recent shaping of a surveillance society in the high-tech era.

In the course of these decades the FBI and police were empowered to search through our garbage, wiretap our land telephones, overhear our cell phone conversations and scrutinize our mail. The authority needed was gradually transformed from requiring a warrant from a regular court to needing a ruling of a secret security tribunal to requiring a mere determination by the U.S. attorney general. Conspiracy laws made it much easier to convict even when overt actions could not be proven, and noncitizens increasingly lost access to lawyers and bail. The rights of the innocent and guilty alike were severely eroded in order to make it easier for prosecutors to obtain convictions. Our society changed drastically as our jails and prisons grew to house more than 2 million Americans serving out ever-longer sentences.

In the aftermath of each of these rounds of abuse of federal police power, appropriate dissent led to temporary and partial rollbacks of some repressive laws and practices. But new concerns repeatedly pulled us back onto repressive paths, and the doctrine that executive branch claims to "protect national security" trump civil liberties increasingly was accepted by the U.S. Supreme Court. This policy will likely continue to prevail when the latest anti-terrorist laws are adjudicated, especially if the Bush administration can add more federal judges who share its repressive views.

We are now entering one of the recurrent periods when fear subsides and government rhetoric alone cannot sustain repressive laws. The past week's reports of PATRIOT Act abuses are deeply troubling and underscore why the law's worst provisions must be immediately repealed. Do we really want the government avoiding our system of checks and balances in run-of-the-mill criminal investigations? Do we want law-abiding people's privacy invaded and their routine activities investigated whenever they join voluntary organizations like the Boy Scouts, the Promise Keepers, the VFW and an array of other groups that are cornerstones of our democracy?

Revelations like these have helped to create a climate where the public can persuade Congress to correct the legislation it meekly rubber-stamped at a time of maximum national trauma. There is now a good chance the PATRIOT Act and other excessive laws can be rolled back. A unique alliance of liberals, conservatives, and libertarians is working to persuade the country to reaffirm its commitment to our liberty and privacy. The ACLU and other groups are reminding Congress that Americans value all of their liberties, fair treatment for immigrants and citizens alike, and responsible measures to improve security without unnecessarily sacrificing our core freedoms.