Tuesday, May 25, 2004
Copyright © Las Vegas Review-Journal

EDITORIAL: Erosion of our privacy

Constitution is supposed to limit government's domestic spying

Rather than address legitimate constitutional concerns when details of "Patriot II" were leaked to the press last year, the Bush administration quietly withdrew the proposal.

But now the Justice Department is back, trying to slip the same domestic spying enhancements through Congress piecemeal, in several different bills.

The FBI has been authorized since 1986 -- long before the Sept. 11 terror attacks -- to use so-called "national security letters" to obtain business and financial records (as well as electronic communications) from third parties, such as Internet service providers, medical offices and credit reporting agencies.

But now, the new "Anti-Terrorism Intelligence Tools Improvement Act of 2003" seeks to punish with five-year prison terms anyone who publicizes the fact they've even received such a "security letter."

When the American Civil Liberties Union recently tried to use the Freedom of Information Act to find out how many times -- and in what kinds of cases -- the FBI had used these "national security letters," they received six pages of blacked-out data with the word "secret" stamped on the top of each.

The ACLU then filed a lawsuit, challenging the constitutionality of the letters. But to avoid violating the very gag order it was challenging with its lawsuit, the civil rights group agreed to file its lawsuit under seal. The very existence of the suit then remained secret for three weeks, while the ACLU's lawyers negotiated with the government what they could and could not say about their own case.

This would seem absurd, were it not so dangerous. How are we to judge how dangerous or unjustified the government's use of these investigative techniques are -- or may become -- if we can be thrown in prison just for discussing how they're being used?

Yes, the administration insists it's all designed to facilitate the investigation of "lone wolf" spies and terrorists -- and few Americans want to hamstring legitimate attempts to track down Osama bin Laden and his ilk.

But we know provisions of the original Patriot Act -- rushed through Congress without even being read in the hours after the 9-11 attacks -- have been used to prosecute drug labs in North Carolina and to seek business information about strip joints in Las Vegas. No one really believed any terrorists were involved in those cases.

So why should Americans believe federal police wouldn't continue to use these enhanced powers when and wherever they choose -- to investigate abortion protesters, say, or war protesters, or draft resisters ... ?

It's not enough merely to ask whether such powers "might help" the FBI. The question is whether it's absolutely necessary to free government of the few remaining constitutional limits on its power of domestic spying -- or whether we risk creating in this country the very kind of unaccountable police state brave Americans have sacrificed their lives trying to overthrow on distant shores.

For as hard and unpopular as it may be to stand firm and guard our constitutional safeguards -- it's going to be far harder to try and win them back after they've been carelessly thrown away.