The Pendulum Swings Back
Terrorist attacks in the 1980s and the 1990s helped to swing the legislative pendulum the other way. In 1983, the Reagan Administration relaxed the Levi guidelines amid criticism that they were too restrictive and cumbersome. In 1986, the Omnibus Diplomatic Security and Antiterrorism Act expanded jurisdiction to cover terrorist acts committed outside the United States where Americans are targeted.

In 1996, the Antiterrorism and Effective Death Penalty Act was enacted a year after 168 people were killed in the Oklahoma City bombing. Passed over the protests of many civil rights groups, the law sharply restricted appeals in death penalty cases. It also expanded the authority of federal officials to:

  • Proscribe domestic fund raising by terrorist groups;
  • Ban suspected terrorists from entering the United States; and
  • Expel foreigners linked to terrorism.

The terrorist murders of Sept. 11 — and the national anthrax scare that has followed them — have once again exacerbated the tension between civil liberties and police power in American life.

In the six weeks that followed the terrorist attacks, authorities arrested or detained more than 1,000 people on immigration violations, various criminal charges, and as material witnesses.

While the public generally has applauded these steps, there have been vocal critics. Harvard Professor Alan Dershowitz, for example, described the detention of material witnesses as a "medieval" tool giving officials far too much power.

As to the immigration-related detentions, Dershowitz complained that, "Right now, it's simply the word of an administrative agent and FBI agents. They may be acting completely honorably, but we the citizens are not in a situation where we can appraise it and see whether it is subject to the rule of law."

A Precarious Balance
Civil libertarians have been further alarmed by the anti-terrorism legislative package enacted in October.

The key parts of the package — subject to a "sunset" requirement that requires reauthorization in four years if the law is to be extended — streamline and relax warrant, investigative, and detention requirements.

The new law gives federal agents expanded authority to track the flow of Internet and telephone communications. It allows information exchange between various law enforcement and intelligence agencies and the limited transfer of information from traditionally secret grand jury proceedings.

It speeds deportation procedures. And it increases the time that the Immigration and Naturalization Service may detain non-citizens, from 48 hours to a week. In some circumstances, the period of detention could be extended even longer.

Most importantly, perhaps, the package bill allows one federal court to have nationwide authority to approve roving wiretaps, phone record searches, and retrieval of electronic evidence. Roving wiretaps follow a particular targeted person, allowing phone intercepts of multiple phones across numerous jurisdictions.

"We need speed in identifying and tracking down terrorists," Attorney General John Ashcroft said while defending this last measure during recent Congressional testimony. "Time is of the essence. The ability of law enforcement to trace communications into jurisdictions without obtaining an additional court order can be the difference between life and death for American citizens."

Others see the package in starkly different terms. "These new and unchecked powers," said Gregory Nojeim, the associate director of the ACLU's Washington office, "could be used against American citizens who are not under criminal investigation, immigrants who are here within our border legally and also against those whose First Amendment activities are deemed to be threats to national security by the attorney general."

The organization has pledged to monitor the implementation of the new law for potential abuses.

In many ways, the attorney general's defense of the anti-terrorism package was reminiscent of Lincoln's justification of the suspension of habeas corpus.

"[T]he American people," Ashcroft argued, "do not have the luxury of unlimited time in erecting the necessary defenses to future terrorist acts. ... They require that we provide law enforcement with the tools necessary to identify, dismantle, disrupt and punish terrorist organizations before they strike again."

In the end, history will determine whether the new legislation represents an unwarranted deprivation of American liberties or a measured and proportionate response to an unprecedented and deadly threat.


Attorney Brian Levin is a professor of criminal justice at California State University, San Bernardino, where he directs the Center for the Study of Hate & Extremism (www.fighthate.org). He has testified before Congress on civil liberties and terrorism and is the co-author of a book on the subject.