Incremental loss of freedom

Fighting the good fight

[Reprinted from Issues & Views May 31, 2004]

In two columns on the subject of the proposed H.R. 3179, the "Anti-Terrorism Intelligence Tools Improvement Act," Steve Lilienthal of the Free Congress Foundation expresses his concern about the attempt to fast-track this House bill. Thanks to Congressman James Sensenbrenner, the bill was taken out of hiding, and an open hearing has been scheduled.

Unfortunately, the first session was suspended and the hearing postponed, due to roll call votes in the House, but not before former Congressman Bob Barr delivered a prepared statement in which he warned against passage of this bill, which would enhance the powers already provided by the Patriot Act, while providing no oversight on the part of law enforcement and no checks and balances on law enforcers' practices. A provision of H.R. 3179 would grant power to the Department of Justice to issue a "National Security Letter" (NSL) to such recipients as librarians, credit card companies, etc., inquiring about the habits of a particular customer or library member.

Recipients of such letters would be subject to a "gag order," which means they would be unable to contact the Justice Department's Inspector General or a member of Congress, if they believed that law enforcers were not using their power responsibly. The proposed law is not clear as to whether a recipient can contact a lawyer, but if this is permitted, the lawyer also would be under a gag order.

Lilienthal writes that "The loose language in the NSL provision of H.R. 3179 should make Americans wary of the DOJ's assurance of 'trust us.'" He is especially disappointed by the apparent lack of media coverage when it comes to legislation such as this bill. He writes:

The trade press wrote stories about the hearing, but The Washington Post and The New York Times did not write one story in advance of the hearing or immediately after it. Advocates of constitutional liberties expressed a great deal of concern about the so-called PATRIOT II legislation last year, but this effort to expand the scope of the PATRIOT Act has largely escaped the notice of two of the most prominent newspapers that cover Capitol Hill.

The fact that H.R. 3179 had initially been slated for mark up without having received any scrutiny from the House Judiciary Committee should have been news in itself. The fact that Rep. James Sensenbrenner, Chairman of the House Judiciary Committee, decided otherwise, made for an even better story. The fact that advocates of constitutional liberties on both the right and left called for a hearing should have provided a good news hook. Apparently it was not enough to have stories published in two of the most prominent national newspapers that cover Capitol Hill.

Lilienthal fears that debate over H.R. 3179 "may be further short-circuited by skillful legislative maneuvering." It has been reported that the bill might have its provisions "slipped into the fiscal 2005 Intelligence Authorization legislation." Bob Barr claims that "only a handful of members would be willing to vote against an intelligence bill."

Both Barr and Lilienthal worry about the possible extension of powers, where law enforcers might say, "Well, we have the power of gag orders for National Security Letters. Why not for other searches too?" Exceptions are likely, claims Lilienthal, "And incrementally they would diminish the investigated person's right to even protest searches."

If and when freedom dies in America, he writes, it will not be a sudden departure. "It will come about gradually, with little attention devoted to the key events as they occurred. . . . The demise of liberty will come bit-by-bit, new regulation by new regulation, new exception by new exception to the Bill of Rights." He urges Americans to make their voices heard by calling and writing letters to members of Congress and by contacting newspapers and other media. "We should do so mindful that there is no greater bequest we can leave future generations of Americans than freedom and liberty."

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