America’s Strategy for Freedom

by  Marie E. Gryphon

9/25/01 -The government of the United States prepares this month to respond to an atrocity so bad that it beggars description.  All concerned agree that a tightening of domestic security, including some increased surveillance, is now necessary.  But many civil libertarians among us also wonder quietly whether some of our most precious personal freedoms may not be discarded haphazardly in the quest for personal safety.

 Congress is presently considering a bill called the Anti-Terrorism Act of 2001, usually referred to as the ATA.  While some provisions of this legislation, such as increased cooperation with foreign intelligence organizations, are necessary and reasonable in the fight against global terrorism, other provisions promise to dramatically increase the power of federal officials to monitor U.S. citizens without particularized suspicion and without meaningful judicial oversight.

It was discovered last year that the FBI has developed a new, cutting edge surveillance tool called Carnivore.  Carnivore enables the agency to monitor the internet surfing habits of entire populations of U.S. citizens via their internet service providers.  The FBI maintains that it can legally use this tool under a very broad interpretation of a federal law that currently allows the tracking of phone numbers dialed from a particular location without a warrant.  But Carnivore does much more than record numbers dialed on a telephone.  By recording all web searches run and all URLs visited by all subscribers to a monitored ISP, Carnivore is capable of presenting in elaborate detail the precise nature of information accessed by millions of citizens, the overwhelming majority of whom are not in any way suspicious.

 When Carnivore, and the FBI’s interpretation of its powers under federal law, came to light last year, Congress promised a full review of both, and the possibility of legislation clarifying and limiting the power of federal agents to spy on citizens without particularized suspicion.  The ATA, however, now threatens to codify the FBI’s questionable interpretation of its domestic surveillance authority within weeks, and without meaningful debate.

Worse, the ATA will dramatically broaden the number of people with whom collected data can be shared, and the purposes for which it can be used.  Under current law, intercepted communications may only be shared with any “investigative or law enforcement officer.”  If the ATA becomes law as written, the communications may be shared with “any officer or employee of the executive branch of the federal government” whenever such sharing is deemed “appropriate to the performance of [his or her] official duties.”  Accordingly, the ATA would permit sharing of confidential information with federal employees who have nothing to do with law enforcement or investigation.  Nor are these new provisions limited to terrorism or information pertaining to violent crimes.  Social Security disability bureaucrats or DSHS employees, for instance, could sift through an ISP subscriber’s records.

 Defense Secretary Donald Rumsfeld said shortly after September 11th that Americans face a choice: we can change the way we live, or we can change the way the terrorists live.  He said that he preferred to change the way the terrorists live.  So should we all.  Though the domestic law enforcement community harbors an understandable bias for broader authority, lawmakers must carefully consider how much of our freedom we should surrender to the enemy in the course of America’s war against terrorism.  We can best preserve both our freedom and our safety by attacking terrorism at its very roots.

  The President’s worldwide military and economic coalition against global terrorism is America’s best hope of preserving its way of life.  Rather than to fundamentally change our open society here at home, America should strike out aggressively at the overseas resources, political, economic, and military, that make global terrorism possible.  Rather than cooperate with President Bush’s worldwide coalition against terrorism, the Taliban has declared a holy war.  Sadly, they must not now be disappointed.  The world will be a far safer place when violent, suicidal radicals committed to dying in the fight against America’s open, tolerant society are given the opportunity to do so.

Benjamin Franklin once wrote that those who would give up an essential liberty for a temporary security deserve neither liberty nor security.  America need not make that choice.  Our security is best served by an aggressive foreign policy that will not tolerate support for terrorism, whether tacit or explicit.  The fight will not be short or easy, nor will it be without great cost.  But we have already paid an incalculable human price.  Let us urge our leadership to move deliberately but aggressively overseas, while casting a protective eye on the cherished domestic freedoms that set us apart from the rest of the world.

 Ms. Gryphon is a practicing attorney in Seattle, Washington and a member of Republican Women of Seattle

In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]