by Dan Richardson
Home of the Brave' seems as apt as ever, but what about 'Land of the Free'? Maybe too free, if one believes some authorities. Here are the weapons the Bush Administration wants to wield against terrorism in the homeland: Detaining people in secret, monitoring attorney-client conversations, convening secret courts, stationing National Guard troops inside airports and softening the traditional checks on police eavesdropping and seizure authority. Dozens of new provisions watering down the requirements for warrants and for judicial oversight, among other things, are gathered under a Congressional bill passed in October. Its name: the USA PATRIOT Act (short for the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" Act).
The federal antiterror act is really a police wish list, according to the national ACLU. The group contends that "most of the new powers could be used against Americans citizens in... routine criminal investigations completely unrelated to terrorism."
Whether lawmakers are using terrorism as a smokescreen for a power grab or truly believe the times call for loosening the restraints, expanding police powers isn't just a federal matter. Soon, the issue could be coming to a state near you. The governors of both Idaho and Washington are right now drafting legislation in the name of Sept. 11. State legislative sessions begin this month; Idaho's began Monday, Jan. 7; Washington's starts this week.
Ten days after two airliners smashed into the World Trade Center in New York, Idaho Gov. Dirk Kempthorne directed his Attorney General's Office to review state laws. The goal was to make recommendations strengthening Idaho laws in case Gem State police have to deal with terrorist attacks.
The result was an 18-page anti-terrorism memo from Attorney General Alan Lance's staff. Several of the memo's ideas concern civil liberties. Ideas like allowing a prosecutor (instead of a judge) to authorize wiretaps for 48 hours, no warrant necessary. Ideas like "roving wiretaps," and allowing police to search someone's home or property without telling the person they've done so until days or weeks later. Lance argues for these ideas by writing, "It is time to update our law on interceptions in several areas." But his ideas for expanding police powers are ones that Congress just passed in the USA PATRIOT Act; indeed, in his staff's review, Lance argues that since the feds now have these powers, maybe state police should, too.
Bob Cooper, Lance's spokesman, tries to downplay the attorney general's memo, calling it in an interview with The Inlander a "brainstorming document," though Lance's initial proposal came from it almost word-for-word. (The only thing spelled out for certain in Lance's proposal is calling for protection of the rights of National Guard troops called to duty; a law against price-gouging, as was attempted by some gas stations immediately following the Sept. 11 attacks; and giving the governor authority to quarantine both people and livestock in the event of a bioterror attack, according to a news release Lance sent last month.)
Cooper also blasts Idaho news reports about the governor-ordered review of antiterror ideas. "The media temperature has been a little bit excessive," says Cooper, adding that some reports have "mischaracterizations of these ideas as attacks on civil liberties."
The idea about letting police tap a phone or other source for 48 hours without a warrant, for example, is "not something we're planning to use," says Cooper, "but it's advisable to have the authority in the event that you need it."
Congress suspended the normal hearing processes in considering the PATRIOT Act. If North Idaho legislators are any indication, those who would increase police powers in this state face considerably more questions than their federal counterparts did.
"The whole idea of police being given more power is always questioned closely in Idaho," says Rep. Jim Clark (R-Hayden), who sits on both the judiciary and appropriations committees. Says Clark, "I have a difficult time increasing police powers or wiretapping authority."
Sen. John Goedde (R-Coeur d'Alene) agrees, saying, "I just don't think legislators in the north will think that way."
Washington's executives aren't offering anti-terror ideas in small bites. They're chomping down on the issue with a single large package of laws.
Gov. Locke and Attorney General Christine Gregoire have proposed an "Anti-Terrorism and Security Initiative." It would mandate background checks for certain transportation workers and enact protections against price-gouging, much like Lance's Idaho memo.
What the initiative doesn't ask for is expanded wiretapping authority, according to Cheryl Reid, spokeswoman for the attorney general's office. Not that Locke and Gregoire didn't think of that. In a Nov. 21 press release, they specifically said they'd ask for greater admissibility of police eavesdropping evidence in state courts.
"They were trying to make it as narrow as they could and just couldn't find a way to do it," inside current law, says Reid. So, instead of asking for more authority, she says, they dropped the issue. Now, the anti-terror initiative is a 70-page rough draft, and the governor is seeking legislators to act as sponsors.
One who likely won't be asked is Sen. James West (R-Spokane County), who says he was invited to stand with Gov. Locke during a November press conference announcing the proposed antiterror legislation. He declined. Not that he's opposed, he says, he just wants to wait for the specific legislation before he passes judgment.
"Politically, jumping on the anti-terrorism bandwagon is not a good idea. You need to look at things in a judicious fashion," says West. A former police officer, West knows what it's like to chafe under civil liberties protections. "I think the police job is difficult enough as it is, but I'm also a person who believes in freedom and liberty."
That's not to say that legislators are of one mind when it comes to relaxing police restraints. Rep. John Ahern (R-Spokane), for one, doesn't think Locke's initial ideas go far enough. Locke is aiming at foreign terrorists but should craft legislation to combat "ecoterrorists," like the people who vandalize mink farms and state university research facilities, he says. Ahern, who is vice-chair of the Legislature's criminal justice committee, also wants laws directing authorities to watch students from abroad more closely. "We need to keep track and make sure these people are really in school."
Some critics of the government, he says, are "so worried about the losing the criminal's civil rights, the pendulum has swung so far left, it's unbelievable. We need to get back to the center."
Sen. Lisa Brown (D-Spokane) describes herself, like West, as open to considering anti-terror legislation, but cautious when it comes to new police powers. Few legislators know the existing laws' specifics in these areas, she says. "I wouldn't want to rush to judgment, like, ''There's a threat, so let's pass a law.' Because often there are unintended consequences."
As groups like the ACLU of Washington watch and wait for state anti-terror proposals, leaders like Ahern and, federally, U.S. Attorney General John Ashcroft contend that efficiency and safety demand loosening restrictions on police.
Ashcroft said before the U.S. Senate's judiciary committee on Dec. 6 that he would not release the names (or the exact number) of the detainees swept up in the national terror investigation. It's for their own privacy, he said -- even though the charges against every other adult in the United States are a matter of public record. Indeed, the transparency of the courts and police has always been a bulwark against their corruption.
Not to worry, says Ashcroft. All the new laws, the police powers, are "carefully drawn to target a narrow class of individuals -- terrorists." But noble intentions find a harsh mistress in history: Federal laws tend to gain power and breadth, not lose them. Congressional lawmakers wrote the 1970 RICO statute to target Mafia racketeers, for example. In recent years, though, federal courts have allowed its use by pro-choice groups in civil suits against pro-life organizations -- effectively allowing political opponents to label one another racketeers instead of protesters.
Already civil liberties groups say federal anti-terror legislation has broadened what it means to be a terrorist. The Electronic Frontier Foundation complains that Ashcroft and company now list computer hackers and other computer criminals under that label. They're criminals, yes, but not the same people who fly airplanes into buildings. And the ACLU points to Section 411 in the PATRIOT Act as stretching the terrorist label even more. "Under this new power," an ACLU report states, "the Secretary of State could designate any group that has ever engaged in violent activity a "terrorist organization" -- whether it be Operation Rescue, Greenpeace or People for the Ethical Treatment of Animals."
Republicans are not alone in heaping new powers in the laps of federal police. Congressional Democrats heavily favored the PATRIOT Act, too. And in recent weeks they've raised the perennial gun control issue. This time, they say, it's necessary to combat - yup - terrorism.
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