The Attack on the Bill of Rights

Between October 11 and 12, 2001 the Senate and the House of Representatives each passed legislation granting the government an array of new powers to monitor electronic communications, and track and investigate suspected terrorists. Called the Patriot Act in the House, and the U.S.A. Act in the Senate, the bills were passed in what the New York Times called "and atmosphere of edgy alarm," compounded by dire warnings from law enforcement officials that another attack was imminent. The legislation passed, despite the efforts of civil liberties advocates to slow the proceedings at least to the point that the effects of the legislation could be considered seriously, and with lawmakers admitting they had not even read the legislation. Less than a week later, Congressional negotiators reached a compromise between differing versions of the legislation, and the measure passed October 25. A CBS-New York Times survey taken September 16 found 74% of Americans believing they would have to give up some of their freedoms in the fight against terrorism. While a commonly cited justification for this attitude is that the September 11 attack took place on American soil, Nat Hentoff suggested in the Village Voice that "most Americans have only the dimmest notion of what their constitutional freedoms are—and what it took to get them. So there is little concern that they and other Americans can be caught in dragnets of suspicion by a government that has suspended much of the Bill of Rights."

The compromise anti-terrorism measure includes a four-year "sunset" provision, ensuring that expanded powers for electronic surveillance will expire after that time. (Evidence obtained may still be used in court after that time, however.) While intended to limit abuse of the legislation, the sunset provision also implicitly acknowledges that such a potential exists. Over the objections of banking industry lobbyists and their advocates in Congress -- largely Republicans -- the compromise also includes provisions requiring that U.S. banks make greater efforts to identify their depositors, and that sanctions be imposed on countries who refuse to cooperate with U.S. law enforcement. Senate Majority Leader, Tom Daschle, had said last week that he would insist on such an anti-money-laundering provision.

The F.B.I's "Carnivore" system, which enables the equivalent of a wiretap on Internet transmissions, is among the anti-terrorism provision that most alarm civil libertarians. Peter Swire, an official in the Office of Management and Budget in the Clinton administration, offered historical context in an interview with the New York Times. "In 1789, what fraction of your communications was even subject to a search?" he asked. "Compare that to today's world of possible wiretaps on all of your phone calls, e-mails and Web surfing." Based on widely-used "sniffer" software, Carnivore examines email of suspected individuals, and logs the addresses of sender and recipients. To do so, however, it may examine all email originating from an Internet service provider.

Ironically, conservative Republicans were among Carnivore's detractors prior to September 11. House majority leader Dick Armey, a longtime Carnivore critic, added language to the legislation requiring the same kind of judicial oversight for Carnivore deployment that currently is required for a full-scale phone wiretap. Nonetheless, many observers expressed concern at the hasty passage of legislation with such far-reaching consequences. Internet security consultant and former federal prosecutor Mark Rasch told the New York Times, "We're going to look back on this a year from now and ask, 'What the hell were we thinking?'"

A coalition of more than 150 organizations issued a statement on October 1 urging calm deliberation, "with a determination not to erode the liberties and freedoms that are at the core of the American way of life." The statement urged that we "resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security." and affirmed the right to peaceful dissent.

Commentators were quick to cite historical precedent for limiting freedom during time of war. During the Civil War, World War I, and World War II, civil liberties were restricted using national security as a justification. In the Civil War, Lincoln suspended the writ of habeas corpus without Congress authorizing it. (Habeas corpus requires that authorities bring an arrested individual before a court and "show cause why the liberty of that person is being restrained.") In World War I, Congress prohibited use of the U.S. mail for sending material advocating "treason, insurrection or forcible resistance to any law." The law was used to ban mail distribution of The Nation magazine, among others. Also in World War I, the Espionage Act was used to prosecute Charles Schenck for printing leaflets advocating draft resistance. The most notorious violation of civil rights in the U.S. during World War II was undoubtedly the interment of Japanese immigrants and their children in walled camps.

An earlier precedent, however, offers an example of how the limitation of civil rights can have unintended political consequences. Congress enacted the Alien and Sedition Act in July, 1798. A key provision of the act stated,

That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

The public justification for the act was to counter the threat posed by the French Revolution, but it is known that it was intended also to punish the Republican Party of Thomas Jefferson. The legislatures of Kentucky and Virginia passed resolutions protesting the Alien and Sedition act, and public outrage was such that Jefferson won the election of 1800. He promptly released all those who had been imprisoned under the act.

As Hentoff says, "Civil libertarians—and there aren't many—have to be careful not to believe that the huge popular support for the Bush war effort will make significant resistance nearly impossible. But opposition to a coup d'état against the Bill of Rights is our only alternative to yielding to the beginnings of a police state for an indefinite period."


Hentoff, Nat "The War on the Bill of Rights" The Village Voice 26 Sep. 2001

Toner, Robin And Neil A. Lewis "House Passes Terrorism Bill Much Like Senate's, but With 5-Year Limit" NY Times 13 Oct. 2001

Clymer, Adam And Robin Toner "Vote Approves New Powers for Antiterror Investigators" NY Times 18 Oct. 2001

McCullagh, Declan "Why Liberty Suffers in War Time" Wired News 24 Sep. 2001

Schwartz, John "Privacy Debate Focuses on F.B.I. Use of an Internet Wiretap" NY Times 13 Oct. 2001

"Provisions of the Antiterrorism Bill" NY Times 26 Oct. 2001

For complete text of the bill, search for S1510 here.