Fighting Terrorism, Preserving Civil Liberties

Remarks on “Fighting Terrorism, Preserving Civil Liberties”

Cato Institute Policy Forum

October 2, 2001

I would like to start by saying, as a general matter, that I don’t think the civil liberties debate in the U.S. is going to look the same for a long time, after the events of September 11th. I know, after waiting for two days to make sure that the people who I knew in the World Trade Center had come out safely, I did not even want to hear the word “privacy.” And I think that civil libertarians will have to be very, very careful that what they are saying about these measures does not begin to sound like empty rhetoric.


Having said that, we’re still alive. The Constitution is still a worthwhile experiment that has been going on successfully for 200 years. And the Congress is still supposed to be a deliberative body; not the executive branch, which launches immediately into furious action.


What I would like to do today is go over my understanding of what some of the newest proposals that have just come out this morning in the PATRIOT Act. I would like to just go over my system for ranking those proposals in order of what I see as their threat to our tradition of limited government. So I have given the proposals that I think do not pose a fundamental threat a green light; proposals that represent a significant change from current investigative practices a yellow light; and then proposals that do represent a fundamental threat to our property and our personal rights a red light. A green light does not necessarily mean we support the proposals or that they should pass them without reading them; it just means that they could be passed without posing a fundamental threat to our most important liberties.


To give you an example of something that I have given a green light, several provisions, Section 103, 154, and Sections 206 of the PATRIOT Act, would allow increased information sharing between agencies, such as criminal law enforcement, foreign intelligence agents and the sorts of agencies that are involved with regulating who comes and goes in and out of the country, related to border patrol issues. I think this provision is basically a fairly sensible one. In addition, it’s going to sunset on December 31st of 2001.


Another proposal which formerly had rated a red light has, under the new provision, in my view, switched to green light status because of the substantial improvements that have been made to it in the last few days. And this was the provision, now in Section 302 and Section 309, that would redefine some ordinary crimes as terrorism. And people were particularly concerned that ordinary crimes like gun possession or computer crimes would suddenly be considered terrorist acts.


Well, the new amendment specifies that these will be considered terrorist acts only if “calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct,” and also if they’re going to cause some sort of serious harm. So, basically, I think that the danger of those expansive provisions has been largely resolved by the amendment.


Now, I’ll move on to proposals to which I’ve given a yellow light. One would allow tracing of Internet traffic without a warrant. That’s Section 101 of the PATRIOT Act. And this is some of the things that Bob Barr talked about when he was talking about Carnivore. Essentially, the new proposal represents a significant departure from the current standard, which is probable cause. And I think the courts are going to take a very, very close look at that.


I think ultimately that if the agencies can provide some meaningful assurance that they can intercept the tracing information only, without seeing the content of the message, that this measure might be helpful to them, and also the civil liberties problem would be confined. But that, for now, gets a yellow light, until further amendments have been made to it. The current amendments do provide that it will sunset on December 31st, 2003.


Another yellow light provision is the nationwide search warrants. That’s Section 108 and Section 351 of the PATRIOT Act. And the problem there is, on the surface, they’re looking for a consolidation, they’re looking for an administrative change, so that they can get one warrant from one Federal court instead of having to go to all 50 States, if an e-mail is passing through many States, in order to get their search warrant. So it may in fact help them save a lot of time in initiating an investigation, which could be very important.


However, the courts must, and I think rightly, take a very close look at the idea that a single Federal court should be allowed to issue a warrant when the property subject to the search may be outside of their jurisdiction. I don’t see any way of getting around some serious problems with judicial review here.


Now, as far as the types of proposals I’ve given a red light, those relate to law enforcement’s desire to have expanded forfeiture powers. The forfeiture powers that have already been given to law enforcement in non-terrorist cases, particularly in connection with the drug war, have already been substantially abused. And the argument that they have used to say that they need these powers in terrorism cases is, well, suppose we have a suspect, we haven’t detained him yet, it’s pretrial, he can use his money to flee the country essentially; we want to be able to stop that. However, a judicial asset freeze, which provides no temptation of corruption to law enforcement agencies the way an asset seizure does, is an effective way of doing exactly the same thing.


There is absolutely no reason they need to be able to seize the assets, as opposed to freeze the assets, to prevent somebody from leaving the jurisdiction before trial. And I think what we have seen with forfeiture has been the police essentially tempted to plant evidence over and over and over again because they want somebody’s yacht or their house or their car, and this is just simply unacceptable.


And with that, I will close. And I look forward to hearing what my fellow panelists have to say.