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Government shouldn't be grabbing new powers

By W. James Antle III
web posted November 26, 2001

Americans recently gathered to reflect on what they had to be thankful for. Notwithstanding the ugly events being broadcast on the nightly news, there were many reasons to be grateful. Yet meaningful gratitude should translate into vigilance so that future generations will have as many reasons to give thanks.

The United States may face threats dissimilar to any previously faced in the nation's history, but this does not render hundreds of years of Anglo-American legal tradition or our republic's historic constitutional protections automatically obsolete.  At the risk of sounding like a broken record on this subject, there is very little that the federal government could have done to prevent the atrocities of September 11 by violating the Constitution and much good that might have been done by adhering to constitutional mandates.

If this sounds like a rehash of previous columns, perhaps this is because there are indications that the importance of preserving constitutional government needs to be repeated.  The new airport security bill includes provisions that will subsidize the air line industry (the beneficiaries of an unconstitutional $15 billion federal bailout), levy new taxes on travelers and expand the power of federal unions by creating thousands of new government jobs.  The source of the federal government's constitutional authority to federalize airport security jobs all over the country and displace private security companies is unclear.  However, Israel and many European nations attempted to nationalize such security in response to terrorism, only to find this an ineffective means of combating terrorists.  Israel and most European countries have since privatized airport security with better results.

It is true that low-paid, poorly motivated baggage screeners hired by many private companies now are ineffective.  But this needn't be the model for how security is provided in a free market.  Not only do foreign countries that have faced terrorism more regularly than we do use private sector security, nuclear power plants, armored cars for money transport, oil refineries and many other high-risk institutions rely primarily on private security with excellent results. 
Republicans once again caved to Democratic criticisms that the GOP was putting politics and the interests of big business above national security and the safety of air passengers.  In fact, it is the Democrats who politically benefit from such legislation by swelling the ranks of their supporters in public sector employee unions and growing government.

Congress also recently passed the PATRIOT Act, an anti-terrorism bill proposed and signed into law by President Bush. Although some concessions were made to civil libertarians on the left and right, the legislation still increases the power of the federal government.  Rep. Ron Paul (R-Tex.) told Insight on the News magazine that members of Congress voted for the legislation without even reading it.

This new legislation gives increased power to any US attorney to read Americans' e-mails in "emergency situations" without obtaining a court order.  It also allows telephone voicemail messages to be obtained using the looser restrictions of a search warrant as opposed to a wiretap warrant.  The clear intent of the Framers in the Fourth Amendment is violated by its approval of "roving wiretaps."  Some existing criminal laws could be subject to federalization on the grounds that such activity constitutes "terrorism" and some observers feel the new law does not define "terrorist" strictly enough. 

The first major attempt to give the federal government new powers to combat international terrorism, the Foreign Intelligence Surveillance Act of 1978, may be a useful precedent.  It set up secret courts to approve wiretaps against alleged terrorists. According to the US Department of Justice, it approved 11,950 clandestine searches and wiretaps during the first 21 years of its existence, rejecting only one – yet still the attacks on New York City and Washington, D.C. took place.  New powers for the federal government are approved while there are some indications that not enough was done to prevent the terrorist attacks under existing federal law and in line with the Constitution.

Amazingly, The Washington Post reports that the US and Mexican governments are continuing talks focused on amnesty for illegal immigrants (albeit occasionally under euphemisms such as the "guest worker program") before any comprehensive new border control policy has been established or immigration policy can be re-tooled to reflect new national security concerns.  Yet control of the borders is clearly the constitutional responsibility of the same federal government asking for new powers in other areas.

There are also dangers involved in proposing secret military tribunals for terrorist suspects, thus far confined to foreign nationals. Secret military tribunals are not an intrinsically bad idea, since we are in effect at war (although a more precise declaration of war, as opposed to the vague congressional "authorization of force," is what the Constitution requires) and non-military, criminal justice approaches to terrorism are both naïve and ineffective.  Apprehended terrorists could have their trials stalled for years by a reprise of the OJ Simpson "Dream Team" while other affiliated terrorists commit horrible acts against American citizens, such as hijackings and hostage-taking, to win their release. 

But there needs to be some precise limits on the application of such tribunals.  Attorney General John Ashcroft told ABC News that foreign terrorists "who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution." Yet the very purpose of constitutional government is to establish that political leaders may not pick and choose what protections individuals will have. While this writer does not dispute the attorney general's premise that the Constitution was promulgated to protect the rights of Americans, it is important not to set a precedent whereby the federal government is not bound by due process or the constitutional standard of the rule of law.

In order to be squared with American tradition and the Constitution, only agents of entities with which the United States is at war who have committed war crimes may be subject to prosecution by these secret tribunals and only for the duration of the war. This will require Congress to formally declare war against Al Qaeda explicitly and perhaps even Afghanistan in order for the likes of Osama bin Laden to be brought before such tribunals. This is necessary to prevent the abuse of these tribunals by future US governments or the execution of American citizens at the hands of secret military courts.

Note that while German saboteurs were apprehended by the United States in 1942 and tried by military tribunal at the orders of President Franklin D. Roosevelt, at the conclusion of World War II former Nazi war criminals were tried in open trials according to established legal procedures. These distinctions should be used as a precedent for our dealing with the terrorists we are now fighting against.

With legislation undermining attorney-client privilege, privacy of telephone and e-mail communications, privacy of financial transactions, constitutional protections of search and seizure and other individual liberties while national defense outlays still represent a relatively small portion of the federal budget and immigration policy remains unchanged, a familiar pattern is repeated. The federal government ignores its legitimate functions but continues to intervene in areas outside its constitutional parameters.

Conservatives in particular are obliged to ask themselves whether every new power assumed by the federal government in the name of the war on terrorism is truly justified by the circumstances or sanctioned by the constitutional mandate to provide for the common defense. It is important to not judge these expansions of federal power based on whether we trust George W. Bush and John Ashcroft with these new powers, but whether we would trust Bill Clinton and Janet Reno with them, or potentially worse people who someday could follow. President Bush will not be in office forever.

We should of course stand united in our determination to overcome terrorism and support President Bush. But this does not mean that all proposals to contain terrorism are equally prudent, nor does it mean that the Constitution no longer is binding as the law of the land. We must do what it takes to protect America from all aggression, but foremost we must always strive to keep it America.

W. James Antle III is a senior writer for Enter Stage Right and can be reached at wjantle@enterstageright.com.

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