WASHINGTON -- The Bush administration's latest effort to protect the nation
against terrorist attacks is raising concern that Americans are now at greater
risk of intrusion from their own government.
The legislation creating the Department of Homeland Security, signed by President
Bush on Monday, contains provisions that build on law enforcement's ability to
peek at e-mail, monitor credit card purchases, bank transactions and travel patterns
and shield its own activities from scrutiny.
Even critics acknowledge that taken individually, each provision is just a
tiny step toward transforming the federal government into "Big Brother." But coupled
with a series of recent court rulings favorable to the Department of Justice and
new administration initiatives, privacy advocates warn that the nation is indeed
experiencing the beginnings of a real-life Orwellian nightmare.
In recent weeks:
- The Pentagon confirmed the existence of the Total Information Awareness program,
which will monitor passports, visas, work permits, airline tickets, rental cars,
gun purchases, chemical purchases and other activities in search of potential
terrorists. The program is being run by Adm. John Poindexter, President Ronald
Reagan's national security adviser who was convicted in 1990 of five counts of
lying to Congress in the Iran-Contra affair. (The convictions were overturned
on a technicality.) Sen. Dianne Feinstein, D-Calif. , said she plans to try to
cut off funds for the program until Congress has a chance to review it.
- A special federal appeals court ruled that the Justice Department has broad
powers under the Patriot Act enacted last year to use wiretaps, read e- mails
and conduct searches of suspected terrorists. Attorney General John Ashcroft called
the ruling "a victory for liberty, safety and the security of the American people"
and immediately stepped up the use of intelligence, saying the decision "revolutionizes
our ability to investigate and prosecute terrorists" by allowing criminal investigators
and intelligence officers to share information.
- The Justice Department challenged a court order instructing it to release
the names of hundreds of people arrested on immigration charges after the Sept.
11 terrorist attacks. Federal attorneys argued that to make such information public
would provide al Qaeda a "road map" to the government's anti-terrorism efforts.
- A federal court in San Francisco rejected a challenge to the detention of
about 600 war prisoners being held in Guantanamo Bay, Cuba, ruling that a group
of clergy and professors have no legal standing to intervene.
"Some of these measures have nothing to do with homeland security," said Jim
Dempsey of the Center for Democracy and Technology in Washington, D.C. "We continue
to chip away at these protections, and we continue to move things off the books
in a way that are away from scrutiny. It's a troubling step down the slippery
The recent developments follow a vast expansion of the Justice Department's
surveillance powers under the anti-terrorism bill passed last year, an easing
of restrictions on FBI agents to infiltrate churches, mosques and political groups
where terrorist activity is suspected, and the secretive detention of an estimated
1,200 foreigners with suspected links to terrorism.
The United States has a long history of restricting civil liberties during
times of war, from President Abraham Lincoln's suspension of the writ of habeas
corpus to President Franklin Roosevelt's forced internment of more than 100,000
Most Americans appear to have accepted the activities as a reasonable precaution
at a time of high risk, polls show, with the notable exception of Arab Americans,
who have been the primary targets of law enforcement.
FEARS OF UNENDING CONFLICT
However, unlike government crackdowns during the Civil War or World War II,
the fight against terror is open-ended, prompting some concern that the government's
new authority will last indefinitely, and ultimately affect a wider circle of
Americans. And because so much of today's law enforcement activity is taking place
in secret, civil libertarians warn that there are no judicial or congressional
checks to make sure the power is not abused.
"There is a tremendous potential for abuse," said Elliot Mincberg, legal director
for People for the American Way,
a liberal interest group that monitors the administration's judicial activity.
"The Department of Homeland Defense is another example of . . . providing authority
to the executive branch with a lack of effective oversight and checks and balances."
Justice Department officials say the real threat to freedom is posed by the
"At this time and place, the threat to liberty is the disorder that terrorists
seek to bring about in our government," Assistant Attorney General Viet Dinh said
in interview earlier this year.
Dinh, who fled Vietnam as a 10-year-old child, and was the chief author of
the Patriot Act, said he has seen "threats to liberty from both the lack of government,
and the excessive zeal of totalitarian control."
"It is not a balance between security and liberty. It is a liberty rooted in
security," he said.
"Ask yourself this: When you take your child to a ballgame, are you more afraid
of government agents watching your child, or terrorists attacking the ballpark.
It's as simple as that. The threat to our freedom comes from Osama bin Laden,
not the U.S. government."
The Department of Homeland Security is intended to combat terrorists by knocking
down bureaucratic barriers and combining 170,000 federal workers, in agencies
ranging from the Immigration and Naturalization Service to the Coast Guard and
Customs Service, under a single department.
Buried in the legislative details is a provision calling for the creation of
something that sounds like it was taken from George Orwell's "1984": the Directorate
for Information Analysis and Infrastructure Protection. The agency is charged
with creating a massive database that could be used to identify future terrorists
or, some fear, spy on alleged domestic enemies.
LOWER THRESHOLD FOR E-MAIL
The legislation also lowers the threshold for Internet service providers to
comply with government authorities who want to monitor e-mail. In the past, authorities
had to show they were concerned about an "immediate danger," while under the new
standard they must show only that they are acting out of a "reasonable belief"
that a crime is about to occur.
As the government seeks to reduce the privacy of suspected terrorists, it also
has extended its own power to shield information from the public. A provision
in the legislation allows the agency to exempt itself in certain cases from Freedom
of Information Act requests without any judicial review.
"Without vigilant oversight by Congress and accountability to U.S. citizens
. . . there is a significant threat that this new department will abuse civil
rights and infringe on civil liberties," said People for the American Way President
"Unfortunately, opportunities to attack the legitimate rights of Americans
are widespread in our new reality, from harassing immigrants to the collection
of massive quantities of data on all Americans, innocent and otherwise," Neas
©2002 San Francisco Chronicle