Nov.-Dec. 2001:
Drums of War, Voices for Peace
Pacifism in a Time of National Pain
Roots of Conflict
What’s Next for Global Justice?
Pentagon’s Blank Check
Our One-Dimensional Media
Countering Military Recruiting
The Constitution in Turmoil
A Nonmilitary Response
New Yorkers Against War

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The Constitution in Danger

by Nancy Chang

n October 11, precisely one month after terrorist hijackers destroyed the World Trade Center and damaged the Pentagon, a jittery Senate, confronted with warnings of more terrorist attacks to come and reports that anthrax-laden packages were being sent through the mail, caved into the Bush administration’s demands for a new arsenal of anti-terrorism tools. With little debate, and over the civil liberties objections of Sen. Russell Feingold (D-WI), the Senate approved the Uniting and Strengthening America Act—known as the USA Act—by a vote of 97 to 1.

photo: Ed Hedemann

The next day, in an unusual display of force, the Republican leadership of the House abruptly scrapped an anti-terrorism bill that the House Judiciary Committee had labored over for weeks. Under the leadership of Reps. James Sensenbrenner (R-WI) and John Conyers (D-MI), the committee had attempted to address civil liberties concerns regarding the bill and had unanimously approved it. However, on October 12, the House leadership rushed to a vote a bill closely resembling the Senate bill and the administration’s proposed bill. In a slight nod to the House Judiciary Committee, and in contrast to the Senate bill, the House bill imposes a sunset clause of three years on the expanded surveillance powers it bestows (with an option for an extension of two more years). The House bill, also known as the USA Act, was approved by a vote of 339 to 79.

As this article goes to press, it remains to be seen precisely how the House and Senate bills will be reconciled. However, because the bills share many provisions in common, it is an all-too-safe prediction that the enactment of the USA Act will result in constitutional violations of an unprecedented magnitude.

First, the USA Act will chill political dissent and discourage protest activities. The act is expected to create a broadly defined crime of “domestic terrorism” that would sweep within its ambit activities involving “acts dangerous to human life that are a violation of the criminal laws” and that “appear to be intended … to influence the policy of a government by intimidation or coercion.” By defining the crime so expansively and in such loose terms, the act gives the government virtually unfettered discretion to prosecute as “terrorists”—subject to enhanced penalties—political protesters who have engaged in civil disobedience and whose viewpoints the government finds offensive. White House Press Secretary Ari Fleischer’s recent warning that “people have to watch what they say and watch what they do” serves as a pointed reminder that in this time of crisis, we cannot rely on our government to adhere to the First Amendment principle that democracy is best served by a free marketplace of ideas.

Second, the USA Act will further diminish our already reduced expectations of privacy under the Fourth Amendment. The act is expected to expand law enforcement surveillance powers by minimizing judicial oversight over such activities and by relaxing the requirement that warrants for secret searches, wiretaps and Internet tracking be supported by a showing of “probable cause” for believing that a crime has been, or is about to be, committed. The act is also expected to permit information obtained in criminal investigations, including personal records, wiretapped conversations and grand jury testimony, to be shared with the CIA without the need for a court order. The act would thereby reverse important reforms of the CIA’s operations that were implemented in the late 1970s after a Senate Committee headed by Sen. Frank Church exposed the CIA’s maintenance of intelligence dossiers on law-abiding Americans who opposed the Vietnam War.

Third, the USA Act will strip immigrants of their fundamental right to freedom from bodily restraint without due process of law. Already, the Attorney General has placed more than 800 persons in detention in response to the September 11 attacks—nearly all of whom appear to be Arab and Muslim immigrants. Many have been held under the dubious authority of an interim regulation that the Attorney General announced September 17. This extraordinary regulation doubles to 48 hours the initial time period the Immigration and Naturalization Service can detain immigrants against whom no criminal or immigration charges have been filed and permits the agency to hold such immigrants for an uncapped “additional reasonable period of time” in the event of an “emergency or other extraordinary circumstance.”

The USA Act is expected to provide the INS with statutory authority to detain immigrants without charge. In a minor concession to the Bill of Rights, however, the act is expected to limit the length of such detentions to seven days. In addition, the act is expected to authorize the INS to detain immigrants indefinitely based on no more than the Attorney General’s certification that he or she has “reasonable grounds to believe” the immigrant is engaged in terrorist activity. Recent court decisions establish that the INS cannot use secret evidence to detain immigrants without providing them with a fair opportunity to confront and rebut the evidence against them. The USA Act would essentially overrule these decisions by permitting the INS to go one step further and deprive immigrants of their liberty without any evidence at all.

Our commitment to the Bill of Rights and to the democratic values that define this nation is under challenge. Already, the executive and legislative branches of government have shown themselves eager to sacrifice civil liberties in order to gain an added semblance of security. Once the USA Act is enacted into law and constitutional challenges to the act wind their way through the courts, the judiciary will face the choice of upholding the Constitution or acquiescing in its surrender. The recent words of Supreme Court Justice Sandra Day O’Connor, who so often figures as the swing vote on pivotal decisions, do not offer much in the way of reassurance. Following a visit to the World Trade Center’s Ground Zero, she gloomily predicted, “We’re likely to experience more restrictions on personal freedom than has ever been the case in this country.”

Nancy Chang is a Senior Litigation Attorney at the New York City-based Center for Constitutional Rights.