---------- Forwarded message ----------
Date: Sat, 01 Jun 2002 18:49:59 -0700
From: radtimes <firstname.lastname@example.org>
Subject: Changing the Standard
Changing the Standard
By ADAM LIPTAK
In 1972, with public concern about government surveillance of the
civil rights and antiwar movements near its peak, a closely divided
Supreme Court refused to forbid the Army to monitor public political
The majority quoted a lower court's assessment of the basic facts:
"The information gathered is nothing more than a good newspaper
reporter would be able to gather by attendance at public meetings and
the clipping of articles from publications available on any
With the substitution of the Internet for the newsstand, that is
essentially what Attorney General John Ashcroft now proposes to allow
the Federal Bureau of Investigation to do.
If the Supreme Court was unwilling to bar a similar practice in 1972,
there is little reason to think a challenge would succeed today.
Indeed, the restrictions under which the F.B.I. has operated for
three decades were self-imposed. Congressional pressure, lawsuits,
scandals and a public outcry played a role in the bureau's vow to
limit domestic surveillance to situations in which criminal conduct
was suspected. But the restrictions were not enforceable in court and
were grounded in what might be called constitutional values, rather
than actual law.
Civil libertarians largely acknowledge that the Justice Department is
free to revise its own guidelines, but they say that the knowledge
that political activity is being monitored by the government will
chill the kinds of unrestrained discussions that are central to
American democracy, with no appreciable benefits.
"There is no Fourth Amendment constitutional problem with the
government surfing the Web or going into a public space or attending
a public event," said David D. Cole, a law professor at Georgetown
University, referring to the constitutional limits on governmental
intrusions. "But there are significant First Amendment concerns.
There is a real cost to the openness of a free political society if
every discussion group needs to be concerned that the F.B.I. is
listening in on its public discussions or attending its public
That concern is particularly acute in mosques and other religious
settings, said Jason Erb of the Council on American-Islamic
Relations. "It starts to erode some of the trust and good will that
exists in these institutions if you're afraid they have been
infiltrated by an undercover agent," Mr. Erb said.
Eric M. Freedman, a law professor at Hofstra University, said the
costs to society of the new investigative tools outweigh their
benefits. "There is a high likelihood that the weapon will be used in
unintended ways and create more collateral damage in the First
Amendment area than it will result in law enforcement gains,"
Professor Freedman said.
But Mary Jo White, who supervised several major terrorism
prosecutions as United States attorney in Manhattan, sees things
Even as a reaction to abuses in the 60's and 70's, Ms. White said,
the old Justice Department guidelines were misguided.
"I wouldn't have favored them in the old days because they are a
barrier to important, legitimate investigative measures," she said.
"We're now at war. The public safety concern has to come first. Would
that we wouldn't have to pay this price for our own safety and
national security. But we do."
The new guidelines allow wide-ranging monitoring of political and
religious activities unconnected with the investigation of any crime
and do away with the requirement that some kinds of investigations be
approved in Washington.
Both revisions troubled Zachary W. Carter, a former United States
attorney in Brooklyn. "To be a Black Panther was not against the
law," Mr. Carter said. "To be a Black Panther and conspire to kill
policemen or blow up buildings was against the law."
The distinction, he said, was sometimes lost in investigations of
that group. Without the old guidelines, "law enforcement authorities
could conduct investigations that had a chilling effect on entirely
appropriate lawful expressions of political beliefs, the free
exercise of religion and the freedom of assembly."
The solution, Mr. Carter said, is careful supervision at the highest
levels in Washington. "Just because the folks in Minneapolis turned
out to be even 100 percent right this time doesn't mean they always
will be," he said, referring to the F.B.I. agents who unsuccessfully
sought warrants to examine the computer files of Zacarias Moussaoui,
the only person charged in the Sept. 11 terrorist attacks.
"Whenever the government in my experience ventures into these gray
areas, whether or not they're going to do it responsibly or not
depends on whether mechanisms are put in place to monitor the
exercise of their discretion," Mr. Carter added.
James X. Dempsey, the deputy director of the Center for Democracy and
Technology, said that monitoring of political activity would not have
uncovered the perpetrators of the Sept. 11 attacks.
"Not a single one of the 19 guys, or 20 if you count Moussaoui, did
anything overtly political," Mr. Dempsey said. "Not one of them said,
`I support Palestinian rights' or `I hate America' in a public way."
But the new guidelines will, he said, have an inevitable impact on
public debate. "Allowing people to freely and openly advocate, say,
Palestinian rights in the hope of persuading others creates the
crucial safety valve that keeps people from turning to violence to
Greg Nojeim, associate director of the American Civil Liberties
Union, identified one potential legal vehicle for attacking the new
guidelines: The Privacy Act. The law, enacted in the Watergate era,
prohibits the government from keeping records "describing how any
individual exercises rights granted by the First Amendment." There
are exceptions: where the monitoring is subject to specific statutory
authorization, where the monitored individual consents and where the
information is "pertinent to and within the scope of an authorized
law enforcement activity."
The F.B.I. will presumably argue that the last exemption fits, though
Mr. Nojeim was skeptical about whether the bureau was free to grant
itself such authority.
Not every civil liberties lawyer opposes the revised regulations.
One, Steven Lubet, a law professor at Northwestern University, said
context matters. "They're not conducting surveillance of a peace
movement," Professor Lubet said. "J. Edgar Hoover has been dead for
30 years, and there is no reason the abuses of the 1960's should
prevent the F.B.I. from taking prudent measures today."
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