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Congress, Courts: Step In

Overreaching by the executive branch is tipping the balance away from protecting Americans' precious freedoms.

September 09, 2002

Michael D. Kirkpatrick knows Americans have little patience for those who would get between law officers and the terrorists they're after. Gesturing at 100,000 square feet of data-packed computers at an FBI center in the West Virginia countryside, his bureau ID bouncing on a "Go Navy" neck cord, the assistant director in charge of the agency's Criminal Justice Information Services Division offers his take on how the people and their president want the agency to proceed: "It's like the Nike commercial--'Just do it.' "

If only it were that simple.

Last Sept. 12, in urging our leaders to fight terrorists mercilessly, we warned that liberties would probably erode. We called for a reevaluation of the balance between rights and security each year on the anniversary of the attacks. That seems particularly important this first year.

We hope people like Kirkpatrick will pause this week to congratulate themselves. So far there has been no new mayhem. But we also encourage President Bush, Congress, the courts and the people to assess the avalanche of changes the war on terror has dislodged; to scrutinize the new powers government is claiming; and to pay closer attention to the details of the 340-page Patriot Act that Congress quickly passed in October and the proposed Homeland Security Department, which seems headed for Bush's desk after much squabbling--but little scrutiny of its effect on fundamental civil liberties.

Today, we spotlight where the government, in its herculean efforts to detect terrorists and prevent attacks, has gone too far in abridging the rights that help define this democracy.

Rights Endangered

The most urgent need for attention comes on the legal front, where the cumulative effect of the Patriot Act has been to massively shift power from federal judges to investigators, putting innocent people at far greater risk of unwarranted government scrutiny, harassment or persecution.

Law enforcers, rightly intent on catching crooks, always clamor for fewer restrictions on how they do their jobs. Sept. 11 gave the attorney general the rationale to obligingly sweep aside plenty. Suddenly, the standard of "probable cause" is history. Under the Patriot Act, prosecutors need only assert that information they hope to find through electronic snooping--by, say, rifling through a library's database of patron reading preferences--would be "relevant to an ongoing investigation."

Some changes are simply common-sense nods to public safety: for example, making it easier, in well-defined circumstances, for law enforcers to listen in on technologically sophisticated bad guys as they move from cell phone to computer terminal in plotting their crimes. But the Bush administration, in its zeal to thwart terrorists, has overcome long-standing legal obstacles to snooping into the homes and conversations of citizens by simply ignoring them or, in some cases, cheating its way around them. If left unchallenged, these incursions could forever erase fundamental privacy and free speech rights.

A Secret Court's Rebuke

In May, for instance, judges on the secret federal court that approves classified wiretaps and searches in terrorism and espionage cases blasted Atty. Gen. John Ashcroft for the FBI's use of false information in dozens of requests for top-secret warrants. Espionage laws allow a lower threshold of suspicion in granting wiretaps. The Foreign Intelligence Surveillance Act created the court in 1978 to protect the public from maverick spying after the Nixon administration abused its intelligence-gathering powers to probe political enemies. The judges, who preside in a windowless room in Washington behind a series of alarmed doors, charged that the Justice Department shared information between criminal and intelligence investigations, giving agencies access to data about "many hundreds of citizens" that they were not legally entitled to have.

The public again needs its Congress to intervene. It needs to remind the attorney general that the powers to enter homes, tap phones and search computers that he has so generously granted to law officers were never his to give. Then it must compel the administration to return to the people each privacy, 1st Amendment protection and due process right he's taken, unless he can prove that doing so would hurt national security.

In opposing President Franklin Roosevelt's relocation of Japanese civilians in the United States during World War II, Atty. Gen. Francis Biddle noted, "The Constitution has not greatly bothered any wartime president."

Perhaps it's only human for a commander in chief whose citizens have been mercilessly slaughtered to focus so intently on protecting them that he loses sight of his responsibilities to simultaneously protect their rights and freedoms.

Congress and the courts, however, should be very bothered by the Constitution--especially when the executive branch is ignoring it. Democracy, with its built-in genius for self-preservation, insists that these parallel branches of government defend Americans' freedoms--even from a president.


Tuesday: Protecting the innocent means protecting the rights of the accused--including accused terrorists.

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