Bush Submits His Laws for War

By Declan McCullagh

10:15 a.m. Sep. 20, 2001 PDT

WASHINGTON -- President Bush sent his anti-terrorism bill to Congress late Wednesday, launching an emotional debate that will force U.S. politicians to choose between continued freedom for Americans or greater security.

Created in response to last week's bloody attacks, the draft "Mobilization Against Terrorism Act" (MATA) rewrites laws dealing with wiretapping, eavesdropping and immigration. The draft, intended to increase prosecutors' courtroom authority, also unleashes the government's Echelon and Carnivore spy systems.

"We will call upon the Congress of the United States to enact these important anti-terrorism measures," Attorney General John Ashcroft said this week. "We need these tools to fight the terrorism threat which exists in the United States, and we must meet that growing threat."

Although Ashcroft has said he hopes Congress will approve MATA by Saturday, Capitol Hill appears to be taking a more cautious approach. The House Judiciary committee has pledged a speedy but careful consideration, and Sen. Patrick Leahy (D-Vermont) has his own legislation he'll highlight at a hearing next Tuesday.

At a press conference Thursday in Washington, scores of organizations from across the political spectrum urged politicians to tread carefully and protect civil liberties during wartime. The In Defense of Freedom coalition says it hopes to prevent a repetition of earlier wars that heralded greater government powers and sharply curtailed freedoms.

During the Civil War, President Lincoln suspended the writ of habeas corpus, interfered with freedom of speech and of the press and ordered that suspected political criminals be tried before military tribunals. After declaring war in 1917, Congress banned using the U.S. mail to send any material urging "treason, insurrection or forcible resistance to any law."

President Wilson asked Congress to go even further: His draft of the Espionage Act included a ,000 fine and 10 years imprisonment for anyone publishing information that could be useful to the enemy. The House of Representatives narrowly defeated it by a vote of 184-144.

This is the inevitable result of war: In national emergencies, even in liberal democracies, the uneasy relationship between freedom and order edges toward greater government power and control.

"There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson or Roosevelt, or that future justices of the Supreme Court will decide questions differently from their predecessors," William Rehnquist, chief justice of the U.S. Supreme Court, wrote in a book published in 1998.

"It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime," Rehnquist wrote in All the Laws But One.

This time, there seems to be little interest in enacting laws against free expression -- but the draft version of MATA would curtail privacy in hopes of thwarting future terrorist attacks. It says:

* Police wiretap powers would be expanded, and Carnivore's utility increased. Any U.S. attorney or state attorney general could order the installation of the FBI's Carnivore Net-surveillance system in emergency situations without obtaining a court order first.

* Voicemail messages would be easier for law enforcement investigators to obtain. A search warrant would be required, instead of a wiretap order that brings with it a higher level of court scrutiny.

* Wiretapping would become easier. Currently, police are required to perform "normal investigative procedures" before tapping, a requirement that would no longer apply.

* Echelon, the National Security Agency's shadowy data collection system operated in conjunction with friendly nations, could be used against Americans. Information gathered from Echelon and other electronic surveillance by foreign governments could be used against Americans "even if the collection would have violated the Fourth Amendment," according to the Justice Department's analysis of MATA.

* The Foreign Intelligence Surveillance Act (FISA), a law that created a secret court to approve spy investigations, would be broadened and made more powerful. Searches and surveillance under FISA would become permissible for one year, instead of the current limit of 45 to 90 days.

* Using this new version of FISA, prosecutors could look through the records of any business, credit card company or Internet provider with an "administrative subpoena" that does not require a judge's approval.

* A non-U.S. citizen suspected of being a terrorist could be detained immediately by federal authorities without a court order.

* The statute of limitations for terrorism-related crimes would be eliminated.

* Nobody would be able to possess certain chemicals or biological agents unless they can prove they have a "peaceful purpose" for doing so.

* State bar associations' ethics rules -- that may limit the ability of Justice Department attorneys to approve undercover investigations -- would no longer apply.

* DNA samples would be taken from all convicted felons.

In a statement, the San Francisco-based Electronic Frontier Foundation said that this "broad legislation would radically tip the United States' system of checks and balances, giving the government unprecedented authority to surveil American citizens with little judicial or other oversight."

The American Civil Liberties Union said Wednesday: "Under the proposed legislation, legal and non-legal immigrants alike would be denied a hearing or any way to contest the accusations against them. This is an unprecedented move inconsistent with the pledge of our leaders not to respond to the terrorist attacks in a way that degrades our system of justice."