DAN K. THOMASSON Second thoughts on the Patriot Act
WASHINGTON -- There was a reason the CIA was precluded from carrying out domestic activities at its inception in 1947. Congress was fearful that it would turn prying eyes into the affairs of average Americans in its efforts to thwart the Red Menace. It is too bad that was exactly what happened on occasion with the FBI, which was given authority over homeland counterintelligence.
Ironically, the same reason prevailed during the tumultuous Vietnam War era when the beleaguered Nixon administration considered a plan by an obscure presidential assistant barely out of college to suspend most of the safeguards against search and seizure and other basic civil rights under a declaration of national emergency rooted in a discredited belief that antiwar activism was being financed from overseas. In that case it was none other than J. Edgar Hoover, who blocked it by refusing to initial the so-called Tom Charles Houston plan, leaving the White House with no illusion about what would happen if it went forward.
Whether Hoover's decision was based on a genuine concern for the damage it would have done to basic civil liberties (he had strongly opposed the internment of Japanese-Americans after Pearl Harbor) or on his fear that the FBI would not be able to control the situation makes little difference. Actually, Hoover already had begun his own efforts to quell what was then considered terrorism by an outrageous program called Cointelpro, which produced its own excesses.
Now the same reasons, and they are good ones, are being cited by a growing number of citizens legitimately worried about how far the American system can be bent in the name of saving it without doing more damage than the terrorists it is designed to foil. The renewal of controversial provisions of the so-called Patriot Act that increased the latitude of government to "spy on Americans" suspected of plotting violence against it will expire at the end of the year, and a strange amalgam of conservatives and civil libertarians is ready to say good riddance.
Controversy centers on the "sneak and peek" provision, so named by the American Civil Liberties Union and other opponents, which allows federal agents armed with a court order to surreptitiously enter a suspect's home to look for evidence without informing him. Also worrisome are the library and medical records section, which permits government access to a wide array of information, and another that gives the FBI and CIA broad authority to look into all sorts of confidential information gathered about Americans in e-mails and telephone intercepts and even grand juries. Frighteningly, the access is not limited to government agents working on terrorism.
The White House, through the Justice Department and its new boss, Attorney General Alberto Gonzales, has conceded that the act needs modifying. In fact, Gonzales, in an appearance before the Senate Judiciary Committee, said he will support modifications in the secret-warrant and other provisions, including limiting them to national security cases and giving the target the right to challenge the legality of a search.
While this is a step in the right direction, it remains to be seen whether it will satisfy opponents. Gonzales' announcement clearly was aimed at heading off growing concern by former congressional supporters of the act worried by the release of records showing that the Justice Department used the secret warrants for any number of things other than terrorism, including cases on child pornography, drugs and organized crime. This and the steady increase in the numbers of warrants issued seemed to verify initial criticism at the time of its passage.
Opposition to these provisions has come from more than 375 government bodies, five states and a coalition of liberals, conservatives, gun-rights advocates and civil- and immigration-rights activists, Muslim-American groups and many others who charge that the act is a steady assault on fundamental freedoms.
This law came about in the immediate heated aftermath of a major assault on America and it reflected a frantic effort to close the security gaps that allowed it to happen. But, as in most cases under these circumstances, it clearly went too far. Passions that overcame better judgment have cooled since then. The numbers in Congress who initially saw the suspension of some liberties as absolutely necessary to staving off another attack have declined considerably.
X Dan K. Thomasson is former editor of the Scripps Howard.