Some people fear that the war against terrorism will mean an unacceptable loss in American freedoms. No doubt that could happen, but, so far, it hasn't--and there is little evidence that it is about to.
Let us start by reminding ourselves of what has not happened. Unlike after World War I, Atty. Gen. John Ashcroft has not whipped up a scare campaign against Muslims as Atty. Gen. A. Mitchell Palmer did against "reds." Unlike in World War II, President Bush has not ordered the removal of people of Near Eastern origin to internment camps in the California desert as President Franklin D. Roosevelt did with people of Japanese ancestry. Unlike the 1950s, no senator has urged the weeding out of Islamic spies from inside our government as Sen. Joseph McCarthy demanded with respect to Soviet agents. Unlike the 1960s and 1970s, the FBI has not used unauthorized wiretaps to gather and spread harmful information about potential terrorists as it once did with respect to political radicals.
What is now at issue are Ashcroft's efforts to improve legislative support for law-enforcement investigations of terrorists and their allies. That bill, now being discussed in Congress, would do several things, most of which will have no effect on American liberties. If passed, it would:
* Allow one federal district court to issue an order authorizing the "trapping" of phone or cell numbers anywhere in the United States. A "trap" or "pen register" is a way of finding out what telephone or electronic address was called by a suspect. It does not authorize listening in on the conversation. The federal government can now trap calls, but it has to seek district-court authority in all 50 states. Allowing one court to authorize it saves on shoe leather.
* Broaden the reach of the special court that authorizes wiretaps on persons who are believed to be agents of a foreign power. Currently, the government must believe that gathering foreign intelligence is "the" purpose of its inquiry. Ashcroft would like it extended so that intelligence gathering is "a" part of its effort. Some criticize this because the court is "secret," but all applications for wiretaps are secret. That is, if we propose to tap the lines of a Mafia boss, we don't tell the boss in advance. The special court that handles foreign-intelligence wiretaps meets in a bug-proof room, not to make it more secret than ordinary wiretap courts, but to shield it from the kind of sophisticated bugging that a foreign government might employ.
* Allow information obtained about foreign intelligence efforts in this country to be shared more widely among federal agencies. As a practical matter, this pretty much happens now; the proposed law only makes it entirely proper.
* Authorize the attorney general to detain "terrorist aliens" (the bill expands the definition of terrorist activity) indefinitely pending deportation proceedings and centralize judicial review of such cases in the district court for the District of Columbia.
* Abolish any statute of limitations on terrorist prosecutions and allow federal courts to sentence persons convicted of terrorism for any term up to life in prison.
* Ban the private possession of any biological agent that poses a security threat unless it is clearly held for peaceful purposes.
The deaths of several thousand innocent Americans in New York and Washington will probably guarantee passage of a new law. There are several desirable changes in the administration's proposal now under consideration. One is to tighten the expansion of foreign intelligence wiretaps and warrants so that intelligence gathering is a "significant" purpose of the investigation. This change will protect the law from being used to gather information with which to prosecute any person suspected only of ordinary criminal activity.
Another change is to ensure that the government cannot, without protecting essential rights, detain indefinitely any terrorist alien or deport any alien legally here who contributes to a group that later may have been called a terrorist organization. To be sure, the federal district court in Washington can hear habeas corpus petitions that will require the government to show cause why the alien is held, but it is not clear on what legal grounds the court can decide the matter.
Under long-standing Supreme Court rules, the executive branch has broad authority over aliens, but that authority has some limits. The Internal Security Act of 1950 allowed the attorney general to detain aliens who were members of the Communist Party, and to do so without allowing them bail. But, in general, a detained alien has a right to a fair hearing. What constitutes a fair hearing? On this the Supreme Court has generally been silent, but a new law that widens the attorney general's powers over aliens would be a good place to set forth some reasonable standards that might guide the district court when it reviews detention.