Has Big Brother arrived, and is he watching us?
Government's expanding powers, which it says are needed to fight the war on terrorism, worry many people because of the long-term consequences for ordinary citizens, including a loss of privacy.
By JAMES HEANEY
News Staff Reporter
John D. Ashcroft is accused of discouraging disclosures under the Freedom of Information Law.
Steps taken in the name of fighting terrorism are producing changes in American society that, according to critics spanning the political spectrum, could leave citizens with less personal privacy, a government that operates in greater secrecy and a judicial system that denies some defendants due process.
It's not a someday possibility, these critics charge. It's already happening.
The military is developing a high-tech system that would allow the government to track the daily activities of its citizens, everything from the e-mail they write to the goods they charge to the library books they borrow.
Authorities have jailed a number of immigrants, and one U.S. citizen, without bringing charges against them.
Government agencies have a growing backlog of unanswered Freedom of Information Law requests from the media and public, thus hindering the free flow of information about government activities.
The government's expanded powers are a "worrisome trend," according to Mark Tapscott of the Heritage Foundation, a conservative think tank. "It raises the specter of (George) Orwell's "1984' vision being fulfilled," said Tapscott, director of the foundation's Center for Media and Public Policy.
It's not necessarily the near term he's concerned about, but the long-term implications. "The problem is a government power sooner or later will be abused," he said.
But federal government officials contend that the changes are necessary, that they need more surveillance powers and aggressive law enforcement authority to counter terrorism.
While officials at the Department of Justice, where many of the government's policies are originating, declined to comment, others sympathetic to the government's position say much of the criticism is premature or overstated.
"The suggestion we're talking about Big Brother looking over the shoulder of 300 million Americans is a little bit of an exaggeration," said Philip Anderson, a senior fellow and director of the Homeland Security Initiative at the Center for Strategic and International Studies.
Critics, however, see a largely unchecked growth in government powers that they say goes well beyond what is necessary to fight terrorism.
They warn that safeguards are now being undone that were achieved in the 1970s after U.S. intelligence agency abuses came to light - including snooping on Vietnam War and civil rights protesters. These laws were seen as promoting openness in government, protecting privacy and limiting government surveillance.
"Those laws are now under attack," said Peter Swire, a law professor at Ohio State University who served as President Bill Clinton's special counsel on privacy. "The problem is that they are redefining surveillance powers, but we haven't had one-tenth the same attention paid to updating our rights to privacy and liberty."
The Bush administration maintains it has struck a proper balance between national security and civil liberties. But critics as well as many who generally support measures adopted since the terrorist attacks of Sept. 11, 2001, say scant attention has been paid to the issue inside the halls of power.
Absent that debate, the Bush administration has moved aggressively on a number of fronts, laying the groundwork for what some envision as a more invasive, more secretive government.
More investigative powers
Congressional approval of the USA Patriot Act last year and the Homeland Security Act last month already has changed some of the rules relating to privacy and the court system.
The acts give intelligence and law enforcement officials greater leeway in searching homes and businesses, tapping telephones and monitoring Internet use. The "probable cause" standard that had typically been required in the past has been eased in many circumstances, and authorities can use these investigative powers in criminal as well as terror-related investigations. The act also permits authorities to operate with less court oversight.
Swire sees several problems with the new powers. They lack checks and balances that discourage abuse, he said, while granting authorities too much access to what should remain the private business of citizens, such as their Internet activity.
Clyde W. Crews Jr., director of technology studies at the Cato Institute, also has concerns.
"What has to be done, and is yet to be done, is to ask, "What does it mean to have Fourth Amendment rights against unreasonable search and seizure in a digital age?' " he said. "We have to define what the government's limits are."
Anderson, of the Center for Strategic and International Studies, said critics are reading too much into the legislation and discounting the role courts have in addressing abuses. "It's pretty widely understood that the Patriot Act is not a perfect product, and we have the ability to make corrections in the courts," he said.
The concerns raised by the Patriot Act almost pale in comparison to the alarm bells sounded after the recent disclosure of the military's Total Information Awareness program. About $200 million has been earmarked for the project, which will take several years to develop.
Planners describe it as an effort to use technological components to integrate information into a single system that could be used to deter terrorist attacks. Doing so would require collecting vasts amounts of information - such as e-mail correspondence, credit card and banking transactions, telephone logs, and library, school and medical records - not just on suspected terrorists, but on ordinary citizens.
"We're talking about a tremendous amount of data," said Rob Courtney, a policy analyst at the Center for Democracy and Technology. "A lot of us every single day create a digital footprint in ways we don't even realize. We buy gas with a credit card. We drive through a tollbooth that sees our license plate. We go to the hospital and generate medical records. We send e-mail that's stored somewhere."
Gary Bass, executive director of OMB Watch, a group that keeps tabs on the White House Office of Management and Budget, said many people overlook the way government intelligence operations can infringe on the privacy of average citizens.
"Most people think it's someone else they're tracking. But what I don't think they get is that in order to track someone else, they may have to track you," he said.
Others say the government's new tools are warranted.
"The war against terrorism at home will be mostly invisible, and it will be won or lost depending on how we use information and intelligence," said Philip Zelikow, director of the University of Virginia's Miller Center of Public Affairs, and a member of the president's foreign intelligence advisory board.
Criticism of government policies is premature, he said, because the administration has yet to formulate an information policy, and some efforts, such as Total Information Awareness, are only in the research stage.
"You don't want to prematurely censor research, as long as it's just research," he said.
Detention of immigrants
In some ways, revisions in immigration law, enacted by Congress and executive branch fiat, have represented the most dramatic change since 9/11. Prior to the attacks, the government had the power to detain and deport immigrants, but it did so within a legal framework that guaranteed due process that was open to the public.
The Immigration and Naturalization Service has been empowered to extend the time to file charges against detainees and hold them indefinitely in some cases. Judicial proceedings can be, and have been, held behind closed doors.
At the same time, the government has applied a different interpretation to a statute regarding material witnesses and applied it to more than two dozen immigrants. The traditional way was to hold reluctant witnesses, usually for a short time, to ensure they appear to testify before a grand jury. Now authorities are using the statute to detain immigrants for up to months at a time for questioning that doesn't necessarily result in an appearance before a grand jury.
Since 9/11, the government has jailed 1,200 to 2,000 immigrants - authorities won't say exactly how many - and has fought efforts to disclose names and charges.
None of the immigrants has been charged in connection with the 9/11 attacks.
David Cole, a law professor at Georgetown University and author of "Terrorism and the Constitution," said the government is practicing preventive detention, which he termed "a very troubling development."
Further steps are being contemplated. The Bush administration is planning a parallel legal system in which terrorism suspects - both foreigners and U.S. citizens - could be investigated, tried and punished without many of the legal protections guaranteed by the criminal court system.
Cole said laws passed in the early part of the last century that targeted "alien radicals" later were reapplied to suppress domestic political dissent.
"History shows that what we do to foreign nationals in times of crisis is invariably a precursor to similar measures extended to (regular citizens) thereafter," Cole said.
Secrecy predates attacks
While many changes in law were triggered by 9/11, the Bush administration's propensity for greater government secrecy predates the terror attacks, many experts say. For example, the number of federal records that were classified by the government increased by 44 percent for the fiscal year that ended Sept. 30, 2001 - covering Bush's first nine months in office.
Critics point to a number of steps taken by the Bush administration before and after 9/11 to limit access to what had been considered public information.
Bush has used executive orders to stop the scheduled release of the presidential papers of Ronald Reagan and blocked disclosure of paperwork involving the controversial pardons issued by President Clinton in the waning days of his administration.
Senators and House members of both parties have complained about the administration's refusal to answer questions on a range of topics. The General Accounting Office, the investigative arm of Congress, went so far as to sue the White House over its refusal to report who served on an energy task force headed by Vice President Cheney. It was the first such suit in the GAO's history, one dismissed last week.
And just last week, the CIA, backed by the Justice Department, asserted that it should not have to reveal its budget from 1947-48 because of national security concerns.
"Information policy is always more restrictive in wartime than in peacetime," said Steven Aftergood, a senior research analyst with the Federation of American Scientists. "Nevertheless, it is clear this administration's secrecy policies far exceed any war-related justification. They are simply resistant to disclosure."
Anderson, of the Center for Strategic and International Studies, said the administration should get the benefit of the doubt, given the times. "This is all new ground. There is going to be a lot of caution on the part of the senior leaders of the country, and I think that's understandable," he said.
A month after the 9/11 attacks, Attorney General John D. Ashcroft revised the federal government's policy on handling requests made under the Freedom of Information Law in a way that has been interpreted in many quarters as discouraging disclosure.
While journalism organizations say it's too early to assess the impact, a GAO report issued this fall found there is a growing backlog of FOIL requests involving records in electronic format, which is increasingly the format of choice.
"We're shifting from a society premised on the right to know to one premised on the need to know, where the government determines whether or not you should have access to the information. That's a fundamental shift in our democratic principles," said Bass of OMB Watch.
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