WHEN WE GIVE UP FREEDOMS

It would be easy for those of us who care about American freedoms to get
behind a counterterrorism bill, like the one under consideration in
Congress, if we knew that every member of our law enforcement and
intelligence services could be trusted to target only potential terrorists
of the type who attacked the World Trade Center and Pentagon.

It would be easy for those of us who care about American freedoms to get
behind a counterterrorism bill, like the one under consideration in
Congress, if we knew that every member of our law enforcement and
intelligence services could be trusted to target only potential terrorists
of the type who attacked the World Trade Center and Pentagon.

But history teaches us that that is not what would happen.

Once the new law hit the books, it would be subject to the same kind of
bending, manipulation and expansion of purpose that so many others have
gone through.

Within the reach of recent history, there have been numerous occasions in
which the Justice Department and local law enforcement have entreated the
legislative branches to expand their authority and reduce their burden of
proof in order to respond to the threat of the moment -- and then turned
around and used those powers against much more benign actors.

A law such as RICO, the federal racketeering statute, was sold to Congress
in 1970 as the only way to combat the scourge of organized crime. Lower the
legal standard for a criminal conspiracy and jack up the financial penalty
to take the profit out of crime, said the Justice Department, and we can
cripple the Mafia. But it didn't take long for RICO to be used in all sorts
of ways having no relationship to criminal syndicates -- against banks,
accounting firms and even anti-abortion protesters.

Civil asset forfeiture -- which allows law enforcement to confiscate assets
under a much reduced standard of proof than is required in a criminal
proceeding -- was another way law enforcement was going to prevent
criminals, and drug dealers in particular, from keeping their ill-gotten
gains. The result has been out-of-control policing. People have lost boats
and houses because trace amounts of drugs were found. Police have
confiscated large amounts of cash from people simply because they were
deemed to be suspicious. Property and money have been taken as "criminal
proceeds" without the owner being charged with a crime. And police agencies
are underwriting their budgets to the tune of millions of dollars with the
goods and cash collected.

If this all isn't troubling enough, in the aftermath of the original World
Trade Center attack in 1993 and the 1995 Oklahoma City bombing, the FBI
aggressively sought to use secret evidence to hold immigrants in jail
without bond. In a slap against the traditions of American justice, the
defendant was not told what was in the secret files or what specific
allegations they contained. He was given no way to defend himself. Of the
two dozen or so men who were held as national security threats on secret
evidence since 1995, nearly all have since been freed. And when some of
that secret, high-level, classified evidence was released, it turned out to
consist of little more than newspaper clippings, reports by FBI agents who
misunderstood the defendant's language or culture, and innuendo by
estranged spouses.

This is why we should be greatly concerned about the new powers Attorney
General John Ashcroft is impatiently asking for under the "Mobilization
Against Terrorism Act of 2001."

In a hearing before the House Judiciary Committee last week, Ashcroft
pressured Congress to pass the measure quickly, saying: "Every day that
passes with outdated statutes and the old rules of engagement is a day that
the terrorists have a competitive advantage."

In addition to allowing the use of secret evidence in civil asset
forfeiture, Ashcroft wants: to be able to indefinitely detain immigrants
without judicial review; to let the FBI "on an emergency basis" follow a
suspect's movement on the Internet and track with whom he's communicating
without a court order; to apply wiretap orders to any phone a suspect uses
or may use, even if that means tapping public pay phones on streets the
suspect passes; and to greatly expand the amount of time the FBI can
conduct secret searches, where the target of the search would have no
opportunity to challenge its constitutionality since he wouldn't know of
its existence.

What his proposals have in common is they almost universally seek to
devalue the role of judges in keeping law enforcement in check. Yet we know
that without limits, police have taken money and property from innocent
people under civil asset forfeiture and prosecutors have added notches to
their belts by using RICO to go after a drug dealer's unwitting interior
designer or real estate agent for money laundering. If given expansive
powers and allowed to ignore civil liberties due to some extraordinary
threat, rest assured, law enforcement authorities will use those powers in
pursuit of the ordinary as well.

During the House Judiciary Committee hearing last week, Rep Barney Frank,
D-Mass., reminded his colleagues that the FBI has at times pointed its
sword at ideological foes. He made reference to former FBI director J.
Edgar Hoover's release of secret surveillance tapes of Martin Luther King
Jr.'s marital infidelities. Hoover was attempting to discredit the
minister, since he couldn't be nabbed for doing anything illegal.

Our freedoms would have been so much better off, and the nation would have
been no less secure, had Hoover been answerable to a judge.

It's a story with lessons for today.