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November 27, 2001

'Anti-Terror' Bill Splits Conservatives


by Jon Basil Utley

Voiding judicial oversight and restricting 4th Amendment limitations on government searches and seizures were the main changes to law of the new PATRIOT anti-terrorism bill according to Beryl Howell, General Counsel to the Senate Judiciary Committee. She spoke to the American Bar Association's Standing Committee on Law and National Security on November 14th.

Attorney General Ashcroft appeared once, for one-and-a-half hours (he left early), to explain Administration positions and then refused to return to finish the hearings during the next three weeks before the final vote, according to Howell. Senators were told to send their questions in writing, but many didn't receive answers until after the vote; although part of the delay was caused by the anthrax evacuations. "There was a clear appetite to pass any bill, no matter what it said," said Howell, and, "Many people were uneasy about the bill and its unlimited authority for surveillance."

The House of Representatives Judiciary Committee hearings and vote were ignored. Majority Leader Hastert then bypassed the hearings' conclusions and negotiated with the Senators himself. Congressmen only received copies of the giant bill a few hours before having to vote on it.

The "common theme of the Administration's law proposal was to eliminate judicial review," said Howell. As regards sharing information between intelligence agencies, grand juries, police and others, laws already existed to allow this. What Ashcroft wanted and got was the elimination of judicial oversight. Also the 4 year sunset provision does not apply to this element of information sharing. (At a conservative meeting in Washington, Congressman Bob
Barr stressed that grand jury testimony, subject to little judicial restraint, was so much composed of hearsay evidence that there were good reasons why judges should have a say in how the information is disseminated.)

Illegal Gun Possession and redefining ordinary computer crimes as "terrorism" were two other Ashcroft proposals. These were modified in the final bill to only be classified as "terrorism if done with the intent of changing U.S. government policy and to cause serious injury or death," according to Solveig Singleton's analysis for the Competitive Enterprise Institute. Detaining foreign nationals suspected to be terrorists indefinitely without judicial restraint or proof was also somewhat modified. Expanding the "seizure" laws for forfeiture of assets without judicial action was also proposed by Ashcroft's Justice Department for any alleged crime. This also was modified. A major purpose of seizures is to prevent the accused from having funds to hire defense from having to hire defense lawyers. Also the monies are often then kept by local police departments.

A large majority agreed that evidence obtained through torture in some foreign (e.g. Middle Eastern) nations should be inadmissible in US courts. The Administration originally proposed that it be allowed. It appears that the FBI and CIA sometimes deliver suspects to foreign police for "questioning" with foreign methods. A sunset provision of sorts limits some of the provisions to a future new vote. Areas of general agreement included "roving wiretaps" to allow general taps over an area and "pen register," which empowers police to see, without a warrant, to whom and from whom e-mail is coming and going, but supposedly not to read the e-mail content nor to use it court.

The bill's passage was soon followed by new Administration regulations allowing police to eavesdrop on communication between the accused and their attorneys, and the establishment of military courts to bypass America's civilian judiciary. The latter was defended by citing the precedents of the American revolution's military courts (before there was a constitution), Lincoln's military courts during the Civil War, and Roosevelt's military trial and execution of some German spies.

The battle to restrain the anti-terrorism bill's more blatant police state agenda showed the marked schism between civil libertarians and big-government conservatives (BigGovCons). Their names compile a Who's Who of Washington's biggest foundations. The most interventionist, even imperialist, conservatives have been the ones least questioning of – and/or totally supportive of – expanded police powers. The Heritage Foundation was notable by its absence on these issues (except for some concern about financial privacy). Others, which either supported the bill or left its provisions unquestioned, include National Review (the editor of National Review Online is married to Ashcroft's chief speech writer), The American Enterprise Institute, and most of the Republican establishment. It seems no accident that the BigGovCons are the ones who most support a permanent Warfare State and generally support American world empire. They are consistent in recognizing that civil liberties pose a constraint on foreign military ventures.

The conservative battle in Washington was led by Paul Weyrich's Free Congress Foundation's Coalition for Constitutional Liberties, Grover Norquist's Americans for Tax Reform, Phyllis Schlafly's Eagle Forum, the Competitive Enterprise Institute and many smaller conservative organizations that signed on to the American Civil Liberties Union modifications proposals (for example, "sneak and peak"). All large Libertarian organizations also supported restricting the new law. In testimony to the House Judiciary Committee, J. Bradley Jansen, of the Free Congress Foundation, cautioned that, "Congress should take another look at Sec. 123 which would authorize forfeiture of funds by a small business owner for simply making a mistake on one of the many reporting requirement forms." He also testified that "Law enforcement already has the authority to seize terrorist assets without trial. The expanded power (sought by Ashcroft) to seize assets without trial for any alleged crime . . . goes beyond . . . what Congress should allow." All US businesses are now required by the anti-terrorism law to advise the Feds of any cash purchases by their customers that total $10,000 or more.


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  • Jon Basil Utley is associate publisher of The American Conservative and Robert A. Taft Fellow at the Ludwig von Mises Institute. A former correspondent for Knight Ridder in South America, Utley has written for the Harvard Business Review on foreign nationalism and was for 17 years a commentator on the Voice of America. He is director of Americans Against World Empire.

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