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Analysis Toward Martial Law by Robert
A. Levy Our government has exploited the events of
Sept. 11 to impose national police powers that skirt time-honored constraints on
the state.
If you think the Bill of Rights is just so much scrap
paper, and the separation of powers doctrine has outlived its usefulness, then
the USA PATRIOT Act, passed overwhelmingly on Oct. 25, is the right recipe to
deal with terrorists. On the other hand, if you are concerned about Fifth
Amendment protection of due process, and Fourth Amendment safeguards against
unreasonable searches and seizures, then you should be deeply troubled by the
looming sacrifice of civil liberties at the altar of national security.
| | Robert A.
Levy is senior fellow of constitutional studies at the Cato Institute.
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To be sure, the Constitution is not a suicide pact. Government is legitimately
charged with defending life, liberty, and property against both domestic and
foreign predators. First among those obligations is to protect life. With America
under attack, and lives at risk, civil liberties cannot remain inviolable. But
that's a far cry from asserting that they may be flouted to wage war against
fanatics. Proponents of the new bill surely understood that many of its
provisions were incompatible with civil liberties. Yet rather than modify the
offending provisions, the president and Congress decided to promote the bill as
an expression of patriotism. Hence the acronym — USA PATRIOT — and its
bloated title, "Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism." The sales pitch worked. Fearful of
being labeled disloyal after the September atrocities, the House endorsed the
bill 357–66, followed by a 98–1 rout in the Senate, with only Russ
Feingold, D-Wis., in opposition. From its initial draft to its final
adoption, USA PATRIOT zipped through in six weeks — gutting much of the
Fourth Amendment in far less time than Congress typically expends on routine
bills that raise no constitutional concerns. Congress' so-called deliberative
process was reduced to this: Closed-door negotiations; no conference committee;
no committee reports; no final hearing at which opponents could testify; not even
an opportunity for most of the legislators to read the 131 single-spaced pages
about to become law. Indeed, for part of the time, both the House and Senate were
closed because of the anthrax scare; congressional staffers weren't even able to
access their working papers. This negligible legislative record will make
it difficult for courts to determine the intent of Congress. And because
legislative intent matters to some judges — for example, Supreme Court
Justices Stephen Breyer and David Souter — the USA PATRIOT statute might
ultimately be invalidated as unconstitutionally vague. Ironically, Congress' rush
job, which facilitated passage of the bill, could be the cause of the bill's
downfall. The same law that was promoted as an act of patriotism might even
provide a rationale for releasing the madmen who committed the horrific terrorist
acts against the United States. Yet the more acute objections to the new
statute are substantive, not procedural. They fall into three main categories.
First, any law with the potential to alter dramatically conventional notions of
individual freedom should fastidiously guard against abuse. The doctrine of
separation of powers, a centerpiece of our Constitution, has been a traditional
buffer against such abuse. By requiring advance judicial authorization of certain
executive actions, followed by judicial review to assure that those actions have
been properly performed, our liberties are shielded from excessive concentrations
of power in a single branch of government. As we shall see, the USA PATRIOT Act
does not pass muster. Second, if the new rules are at all justifiable,
they are defended as a necessary instrument of anti-terrorism. If so, why do many
of the provisions apply not only to suspected terrorist acts but also to everyday
national security investigations and even ordinary criminal matters? In effect,
our government has exploited the events of Sept. 11 to impose national police
powers that skirt time-honored constraints on the state. The executive branch
will not always wield its new powers in the service of ends that Americans find
congenial. Better that the government be shackled by the chains of the
Constitution. Third, laws that compromise civil liberties must be
revisited periodically to assure that temporary measures, undertaken in response
to a national security emergency, do not endure longer than necessary. Such laws
must contain sunset clauses: That is, they should expire automatically within a
short time of enactment — thus imposing on government the continuing
obligation to justify its intrusions. In this instance, the Bush administration
rejected any sunset provision whatsoever. Congress demurred, and insisted on
including such a provision; but it applied only to new wiretap and surveillance
powers, not to the whole bill. Moreover, the sunset date was fixed at Dec. 31,
2005 — more than four years after passage of the legislation. Plainly, a
shorter time frame — one year, or two years at most — would have been
appropriate. If the emergency persisted, Congress and the president could
re-enact the law. Skeptics might dismiss those objections as mere
abstractions — civil libertarianism run amok — unless they are
illuminated by concrete examples from the statute. Here, then, are just a few of
the more egregious threats to personal freedom.
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necessary instrument of anti-terrorism, why do many of the provisions apply not
only to suspected terrorist acts but also to everyday national security
investigations and even ordinary criminal matters?
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During the Carter administration, Congress passed the Foreign Intelligence
Surveillance Act, which created a new federal court to approve electronic
surveillance of citizens and resident aliens alleged to be acting on behalf of a
foreign power. Until now, the FISA court granted surveillance authority if
foreign intelligence was the primary purpose of an investigation. No longer.
Under Section 218 of the USA PATRIOT Act, foreign intelligence need only be "a
significant purpose" of an investigation. That sounds like a trivial change, but
it isn't. Because the standard for FISA approval is lower than "probable cause,"
and because FISA now applies to ordinary criminal matters that are dressed up as
national security inquiries, the new rules could open the door to circumvention
of the Fourth Amendment's warrant requirements. The result is rubber-stamp
judicial supervision of phone and Internet surveillance, even in regular criminal
cases, and FBI access to medical, educational, and other business records that
might conceivably relate to foreign intelligence probes. This is but one
example of the government's expanded powers to conduct searches and surveillance.
There are others. Government will have access to some financial records, without
notice or judicial review. While judicial approval is necessary to retrieve
voice-mail messages, the requisite court order can now be obtained with a minimal
showing of relevancy. That same low standard governs traces on Internet surfing
and email. Perhaps worst of all, under Section 213 of the act, secret "sneak and
peek" searches of physical property will be condoned in routine criminal
investigations. Those searches can be conducted without knowledge of the property
owner until a "reasonable" time after the search has occurred. No knowledge means
no opportunity to contest the validity of the search, including such obvious
infractions as rummaging through office drawers when the warrant authorizes a
garage search, or even searching the wrong address. On the
money-laundering front (Sections 301 through 377), the secretary of the treasury
is empowered to label any jurisdiction a "primary money laundering concern," in
which case foreign banks will be required to disclose their customers and
transactions. Predictably, the identified countries will be those with low tax
structures and strict laws protecting the privacy of their customers. Yet there
is little evidence that tax havens are a magnet for dirty money. In fact, when
money is transferred across borders and back again, the risk of detection is
high. That serves as a deterrent to such transactions. To punish nations that
harbor terrorists and their assets, we should shut off U.S. access to financial
institutions that refuse to provide evidence associated with the September
carnage. We should also invoke existing bilateral agreements, and negotiate new
agreements, waiving bank secrecy and requiring mutual cooperation when
prosecuting terrorist acts. Civil libertarians are rightly alarmed that
the attorney general can detain, for seven days, noncitizens suspected of
terrorism. After seven days, pursuant to Section 412 of the act, deportation
proceedings must commence or criminal charges must be filed. Originally, the
Justice Department had asked for authority to detain suspects indefinitely
without charge. Congress could not be persuaded to go along. But the final bill,
for all practical purposes, allows expanded detention simply by charging the
detainee with a technical immigration violation. And if a suspect cannot be
deported, he can still be detained if the attorney general certifies every six
months that national security is at stake. To illustrate the magnitude and
scope of that problem, The Wall Street Journal reported on Nov. 1 that seven
Democrats had filed Freedom of Information Act requests for a detailed accounting
from Attorney General John Ashcroft on the status of more than 1,000 detainees.
The lawmakers cited reports that "some detainees have been denied access to their
attorneys, proper food, or protection from . . . physical assault." Some of them
were allegedly being held in solitary confinement even though they hadn't been
charged with any criminal offense. According to a representative of the New York
Legal Aid Society, several Arab detainees had been limited to one phone call per
week to a lawyer and, if the line was busy, they had to wait another week.
Maybe those reports will turn out to be groundless. But it's time for some
answers. Here's what the Washington Post had to say in an Oct. 31 editorial: "The
Department of Justice continues to resist legitimate requests for information
regarding the 1,017 people it acknowledges having detained in its investigation
of the September 11 attacks. . . . The questions are pretty basic. How many of
the 1,000-plus are still in custody? Who are they? What are the charges against
them? What is the status of their cases? Where and under what circumstances are
they being held? The department refuses not only to provide the answers but also
to give a serious explanation of why it won't provide them." Ultimately,
the Supreme Court may have to clarify how the civil liberties or national
security tradeoff will unfold. This past term, in Zadvydas v. Underdown,
the court held that immigrants who have committed crimes cannot be detained
indefinitely, but must be deported within a reasonable period or released.
Moreover, said the court, temporary and even illegal immigrants, not just U.S.
citizens, are entitled to due process. Still, the court noted that different
rules may apply to immigrants who are denied entry, suspected of terrorism, or
considered to be national security risks. Thus, the law is murky, and the
legislation passed in the aftermath of September's events adds new elements of
uncertainty. Nonetheless, the controlling principle is unambiguous. Any attempt
by government to chip away at constitutionally guaranteed rights must be
subjected to the most painstaking scrutiny to determine whether less invasive
means could accomplish the same ends. The USA PATRIOT anti-terrorism bill does
not survive that demanding test. In a free society, we deserve better.
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