More Eyes On You

By Richard Lacayo

When Attorney General John Ashcroft proposed new antiterrorist legislation last week, he wanted Congress to approve it within days. At the White House, there was some annoyance that he set the deadline without consulting first. But maybe Ashcroft was right to think he had to act fast, and not only because he needs to crack terrorist networks before they can strike again. He also needs to head off resistance from people across the political spectrum who think the Justice Department already has all the power it needs. The things that Ashcroft wants--expanded power to tap phones, sift through e-mail and detain or deport foreigners--don't just offend the A.C.L.U. Cynicism about government power is now the folk culture of the American right. In Congress, one of the first members to question Ashcroft's plans was Georgia's state-of-the-art conservative Representative Bob Barr. "We cannot and must not," he said, "allow our constitutional freedoms to become victims of these violent attacks."

As a former Senator, Ashcroft is well aware that in 1995, in the wake of the Oklahoma City bombing, bipartisan antiterrorism proposals much like the ones he just introduced were defeated in the House by Barr and Michigan's John Conyers Jr., the liberals' liberal. It was a strange-bedfellows alliance that has come back to life. This time, more than 150 organizations from left and right have organized an umbrella group, In Defense of Freedom, that may be the first umbrella that Phyllis Schlafly's Eagle Forum has ever shared with the National Gay and Lesbian Task Force. As head of Americans for Tax Reform, Grover Norquist is ordinarily one of Washington's most high-profile conservative activists. But he hasn't forgotten that during the 1995 battle, Deputy Attorney General Jamie Gorelick suggested that the new powers could be used against militant tax evaders. "Prosecutors always want more power," says Norquist. "We need to slow this down."

One of the proposals defeated six years ago, "roving wiretaps," made a comeback on the Attorney General's wish list last week. Presently, when wiretap authority is granted by a judge, it applies only to a specified phone. In an era of "literally disposable phones," Ashcroft said, investigators need to be able to seek permission to monitor any landline phone, cell phone or pager that a suspect uses, or to go through e-mail from any computer he works on. But once the roving tap is okayed, no judge would further oversee how it was carried out, leaving the FBI to decide on its own how many devices to tap. What Ashcroft's critics predict is a world of "anticipatory monitoring" in which a multitude of innocent bystanders is caught up. It doesn't help that he also wants Congress to allow the FBI to use routinely its controversial Carnivore software, which can comb through millions of e-mails and Web searches, looking for suspicious online activity. "All these provisions together will amount to a breathtaking expansion of federal power," says Nadine Strossen, president of the A.C.L.U.

Last week Ashcroft also ordered that immigrant suspects, who could already be detained for 24 hours without being charged, can now be held for 48 hours, or longer in emergencies like that faced now. Eighty or so of the suspects detained so far in this investigation were originally held under that rule. Even at present just a handful have been brought up on formal charges. Foreign nationals in the U.S. are subject to treatment that the courts would forbid for American citizens. The 1978 Foreign Intelligence Surveillance Act gives the FBI authority to monitor secretly persons suspected of espionage or terrorism without having to show probable cause that the suspect has committed a crime. Immigrant suspects can be tried without being informed of the charges or the evidence against them. Thus the INS was able to detain Nasser Ahmed, an Egyptian in New York City, for more than three years without letting him know the charges against him. In 1999 a judge finally compelled the government to concede that Ahmed wasn't a terrorist and let him go.

Civil libertarians are also worried about Ashcroft's proposal to let the government deport foreigners if they give aid to any group that has any association with terrorist acts. The legislation would even be retroactive. Could an immigrant who gave money to an antiabortion organization five years ago, for example, be deported if it is shown now that the organization once threatened to endanger an abortion clinic? "These new powers violate core principles of due process and associational freedoms," says David Cole, a lawyer at Georgetown University Law Center.

Some of Ashcroft's requests, like the ones making it easier to probe money laundering, are less controversial and face easier passage. Senator Patrick Leahy, who heads the Senate Judiciary Committee, has issued a package of alternative proposals that could also provide a basis for compromise. Hearings on Ashcroft's legislation are scheduled for this week not only by Leahy's mostly moderate committee but also by the argumentative House Judiciary Committee, a body divided between conservatives like Barr and Henry Hyde and ultraliberals like Conyers and Barney Frank. Then again, there may not be that many arguments. This is one issue on which left and right are joining hands.

--Reported by Andrew Goldstein/Washington

With reporting by Andrew Goldstein/Washington