By ROBERT F. DRINAN

In the aftermath of Sept. 11 and the possible threat of anthrax, the serious erosion of constitutional rights legalized by Congress has received little public attention.

The Senate passed the bill 96-1; the one dissenter was Sen. Russell Feingold, D-Wis., whose amendments were overwhelmingly defeated.

The House voted for the bill 337 to 79, although almost everyone had to concede that it was impossible to comprehend or even read the bill. The measure was proposed by the Justice Department and set aside a measure enacted 36 to 0 by the House Judiciary Committee.

Even those most familiar with the challenges to our freedoms in wartime cannot yet fully appreciate the extent of the evils and errors in the hastily concocted measures alleged to be needed to control terrorism. The anti-terrorism measures cleared by Congress were presented to the lawmakers as measures that, had they been in place prior to Sept. 11, would have permitted the CIA and the FBI to have discovered the terrorists that assailed the nation. That is a dubious proposition, but the privileges sought by the intelligence agencies over the last generation and resisted by Congress are about to become the law of the land.

Here are some of the features of the new anti-terrorist legislation:

1. The grand jury system was created centuries ago as a secret process in which a prosecutor could present evidence against a certain individual, which, if not agreed to by the 23 members of the grand jury, would be secret forever. The new bill would allow the FBI to share the hitherto confidential information revealed in a grand jury with the CIA and others.

2. Existing provisions to obtain evidence by wiretap authorized by a court would be extended to roving wiretaps to cover e-mail, Internet and about any method of communication used by a suspect. This includes the right to use a so-called pen register, which reveals to the police the number of every incoming call on the phone.

3. The bill also allows authorities to carry out searches of people’s homes without notifying them until after the event.

4. The Foreign Intelligence Surveillance Act, FISA, was enacted by Congress in 1978 (without my vote). It created a secret court where intelligence agencies could obtain a search warrant if they certified that the primary purpose was to gather information or intelligence. The new bill changes “primary purpose” to “a purpose” -- a small change with big consequences.

The House proposed a two- or three-year sunset provision. The anti-terrorism law would be repealed after the designated period elapsed. A five-year sunset, a far less attractive alternative, may end up on the bill. A measure without a sunset provision would be truly dangerous.

The climate in which this bill was authored and enacted is a period of almost open hysteria with the administration and intelligence agencies literally demanding that the Congress act immediately to give what they have wanted for many years. Members of the Congress knew it was politically risky, indeed political suicide, to vote against a bill designed to deter terrorism. The lone dissent of Sen. Feingold will certainly be hailed as a courageous act, but the political consequences may be serious.

Wartime causes Americans to panic and enact bad legislation. The first example was the Alien and Sedition Acts in 1798, four internal security laws restricting aliens and curtailing the press in anticipation of a war with France. The legislation was one of the reasons John Adams lost to Thomas Jefferson in 1800. The cancellation of habeas corpus during the Civil War is another example of the shortsightedness that war almost inevitably brings. In 1942 the United States interned 120,000 Japanese-Americans on the theory that they were potentially subversive. In 1987, a presidential commission on which I served persuaded Congress and the country that the internment was illegal. Each surviving person received $20,000 and an apology from their country.

The insistence by the Bush White House in calling the attacks of Sept. 11 a “war” appeals to the sense of vulnerability the American people share. In such a climate, almost anything that is proposed as a weapon against terrorism will be approved. Congress rejected all of the usual months of reflection and calmness needed for sensible and wise legislation. Its product is one more serious impediment to granting equality and justice to the seven or more million Americans who are of Arab or Muslim heritage.

Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center. His e-mail address is drinan@law.Georgetown.edu

National Catholic Reporter, October 26, 2001

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