e-mail us

September 11
A Year Later

Congress questions Patriot Act policies


Feeling a small but discernible sense of buyer’s remorse for its overwhelming and hurried support of the post-Sept. 11 Patriot Act, Congress is placing increasing pressure on the Bush administration to explain its domestic spying policies.

One result of that nagging regret: House Judiciary Committee hearings this fall on government surveillance of U.S. residents, including, as a result of a May Justice Department initiative, those who gather at religious services or political events.

Spearheaded by a political odd couple -- committee chairman F. James Sensenbrenner, R-Wis., one of the House’s most conservative Republicans, and John Conyers, D-Mich., the committee’s senior Democrat and one of the body’s most liberal members -- the hearings promise an enlightening civics lesson. The key questions: What constraints on domestic spying does the Constitution provide on a government that is on a war footing and worried about foreign operatives within its borders? Where to draw the line between legitimate intelligence gathering and illicit government snooping?

The scrutiny has already begun. In a June 13 letter to Attorney General John Ashcroft, Sensenbrenner and Conyers asked more than 50 questions related to implementation of the Patriot Act. The Justice Department said answers to several of the questions were within the purview of the more secretive House and Senate Intelligence Committees and requested additional time to respond publicly to others. Sensenbrenner threatened to compel answers. “I’ve never signed a subpoena in my five-and-a-half years as chairman,” Sensenbrenner told an Aug. 18 editorial meeting of the Milwaukee Journal Sentinel. “I guess there’s a first time for everything.”

Among the unanswered queries: How many times has the Justice Department shared foreign intelligence and counterintelligence information with domestic law enforcement agencies and immigration officials?

Meanwhile, Ashcroft’s decision last May to expand FBI “surveillance guidelines” -- agents can now begin investigations when they have a “reasonable indication” that criminal activity is taking place -- has civil liberties groups howling. Under the old rules, FBI agents could not begin an investigation without “probable cause” and high-level Justice Department authorization.

The guidelines were eased, according to the Justice Department, to allow agents access to information and meetings on an equal basis with any member of the public. The new guidelines correct what Ashcroft termed “excessive constraints on our intelligence gathering and sharing capabilities.”

Others see a less benign outcome, pointing to previous abuses by the FBI, including government infiltration and disruption of the civil rights and anti-war movements of the 1960s and ’70s.

The Arab American Institute, for example, said “the new guidelines allow wide-ranging monitoring of political and religious activities unconnected with any investigation of any crimes, and do away with the requirement that some kinds of investigations be approved in Washington. On this point, it is clear that the guidelines clearly target Arab Americans, Muslims, immigrants and visitors to this country.”

James Dempsey, deputy director of the Washington-based Center for Democracy and Technology, pointed to the 1980s investigation of the Committee in Solidarity with the People of El Salvador, CISPES. There, said Dempsey, the FBI received information, later shown to be false, that the Dallas chapter of the group was planning “to carry out violent activities” in opposition to U.S. policy in Central America. That initial tip spiraled into a broad investigation that encompassed surveillance of mainstream church groups, including those who, for example, publicly questioned U.S. immigration policies. The fear is that the new guidelines will lead to a repeat of such activities, where groups and people are investigated, said Dempsey, “not for what they’ve done, but for what they believe.”

Further, said Dempsey, formerly assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights, the changes are not needed to fight terrorism. FBI agents and other law enforcement officials had the authority under the old guidelines to investigate religious or political groups if they suspected criminal activity.

The coming debate on government surveillance is just one of many post-Sept. 11 civil liberties issues Congress and the courts will consider this fall. Among them:

  • The identity of the more than 100 people currently held by federal authorities. Civil liberties groups have a suit pending that would require the government to reveal the names of those held in Sept. 11-related arrests. More than 1,000 people were detained in the two months following the Sept. 11 attack.
  • The use of military tribunals to try non-citizens allegedly involved in terrorism.
  • Increased monitoring of legal immigrants and visitors from Arab countries.

Convinced that its policies have thwarted additional terrorist attacks, and fearful of blame in the event of another, no one expects the Bush administration to back off its aggressive stance. But the Patriot Act expires in 2005, at which point those who question the administration’s approach hope to turn congressional buyer’s remorse into a recall.

Joe Feuerherd is a freelance writer in Maryland.

Related Web sites

Arab American Institute

Center for Democracy and Technology

Department of Justice

House of Representatives Committee on the Judiciary

Text of the Patriot Act

National Catholic Reporter, September 6, 2002