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Has post-9/11 dragnet gone too far?
How the scales of Justice may turn
Sometimes, it is said, the best defense is a good offense. That's what the Bush administration appears to be doing as it pushes for additional powers to fight the war on terrorism - even as it fights criticism that some of the power it gained after Sept. 11 threatens civil liberties.
On the eve of Thursday's 9/11 anniversary, President Bush called on Congress to expand the government's ability to go after terror suspects. His most controversial proposal would allow federal law-enforcement agencies to issue their own subpoenas in terror-suspect cases, bypassing the check of going to a judge or grand jury. Bush also proposed allowing judges to deny bail for terror suspects and called for expansion of the death penalty in terror-related crimes.
The bold initiative comes after months of debate over whether some provisions in the USA Patriot Act, the sweeping antiterrorism law enacted Oct. 26, 2001, already intrude too heavily into individuals' rights. Early this year, the draft of a bill dubbed "Patriot II" - including some of the items Bush just proposed - leaked from Congress, but was shelved after sharp criticism.
Another slap at the administration came on July 22, when the House of Representatives voted to defund Section 213 of the Patriot Act - the provision for so-called "sneak and peak" searches, in which warrants are granted in secret and the target is notified after an indefinite delay. Perhaps most troubling to the Bush administration, the measure was sponsored by a conservative Republican, Rep. C.L. Otter of Idaho; in all, 111 Republicans voted for the repeal. When Congress first approved the 342-page Patriot Act, few from either party dissented. Beyond the Otter amendment, House members have introduced bills to repeal other portions of the Patriot Act.
Still, on balance, polls show the public remains satisfied that the Bush administration is honoring civil liberties. In a new Monitor/TIPP poll, 38 percent said the Patriot Act was just right, 28 percent said it gave the government too much power, and 12 percent said it gave the government too little power. But Attorney General John Ashcroft hasn't taken chances. Since Aug. 19, he's been on a road show, defending the Patriot Act before invitation-only audiences, mainly of law-enforcement and military personnel.
"It is a little paradoxical in some ways," says David Rudovsky, a law professor at the University of Pennsylvania. "But I think what he's trying to do is shore up his defense and turn that a little bit into offense, to say, 'Not only has [the Patriot Act] worked, but we don't have enough yet. We need even more powers, and you'll be even safer.' "
On Capitol Hill, some Republican aides expressed skepticism that Bush will win the new law enforcement powers easily. Not long ago, key Republican members in both judiciary committees warned the White House to hold off on new legislation. But even if Bush loses on the Hill, he still wins with the public, says a Senate GOP staffer. "It gives the administration the ability to make the argument that 'we've kept you safe, we've tried, we've done our best,'" says the aide.
Key provisions of the USA Patriot Act
• Expands the range of crimes trackable by electronic surveillance.
• Allows police to use 'roving wiretaps' to track any phone a terrorism suspect might use.
• Permits law enforcement to conduct searches with delayed notification - the so-called "sneak and peak" provision.
• Allows FBI agents, with secret court orders, to search personal records (business, medical, library, etc.) without probably cause in national-security terrorism cases.
• Lowers legal barriers in information-sharing between criminal investigators and intelligence officials.
• Provides new tools for fighting international money laundering.
• Makes it a crime to harbor terrorists.
• Increases penalties for conspiracy - such as plotting arson, killing in federal facilities, attacking communications systems, supporting terrorists, or interfering with flight crews.
• Makes it easier for law-enforcement agents to obtain search warrants any place where "terrorist-related" activities occur; allows nationwide search warrants (including the monitoring of Internet use, e-mail, and computer bills) in terrorism investigations.
• Allows the attorney general to detain foreign terrorism suspects - but charges, deportation proceedings, or release must come within a week.
• Sends more federal agents to patrol the US-Canada border.
• Ends surveillance and wiretap measures in 2005.
Sources: Wire services and The Department of Homeland Security
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