We are now on a war footing in this country. There are attempts to apply the laws of war domestically with very little security benefit but also without an end. We are told by the attorney general it’s an ongoing war that has no end, that it’s a war against terrorism that will go on for years. We are now in a grave period for civil liberties.
WASHINGTON — The year 2001 was not a great one to be a civil libertarian.
Polls taken after Sept. 11 suggest overwhelming support for Attorney General John Ashcroft’s strong police measures, and Ashcroft recently claimed his most strident critics are practically “aiding terrorists.”
Even the famous American Civil Liberties Union, founded in 1920, has had a mixed history of defending liberty in times of national crisis.
When Japanese-Americans were interned during World War II, the ACLU’s initial response was supportive. In the 1950s, the ACLU board surreptitiously provided intelligence information on its members to J. Edgar Hoover’s FBI and voted to condemn the Communist Party as an “international conspiracy to seize power.”
More recently, the ACLU has been a fierce champion of free expression and a stalwart opponent of more government surveillance authority. It led much of the opposition to the Bush administration’s anti-terrorism legislation enacted after the Sept. 11 attacks.
Wired News interviewed Barry Steinhardt, associate director of the ACLU and former president of the Electronic Frontier Foundation, for his perspective on civil liberties in the 21st century.
Wired News: With the Bush administration’s war on terrorism underway, what’s the outlook for civil liberties in 2002?
Barry Steinhardt: We are now on a war footing in this country. There are attempts to apply the laws of war domestically with very little security benefit but also without an end. We are told by the attorney general it’s an ongoing war that has no end, that it’s a war against terrorism that will go on for years. We are now in a grave period for civil liberties.
WN: What are some of the things that Attorney General Ashcroft has done that worry you?
Steinhardt: Well, it’s not exclusively Attorney General Ashcroft, but certainly he has been at the forefront to apply the ironically named USA Patriot Act. It’s ironically named — to call something that attacks fundamental American values “patriotic.”
(The government has detained) more than 1,000 Arab-Americans, sometimes without counsel. It appears there are secret hearings and secret incarcerations — 5,000 persons who are being subjected to interrogation, a roundup. (It’s) based on ethnic profiling; that if you’re Arab-American or of Arab descent, you might be tied to terrorism without any specific cause that these individuals need to be questioned. You’ve got all these things happening — debates over national IDs, increased surveillance without security benefits at airports, increased profiling at airports without benefits in security. That’s in the short term. We don’t know what the long-term consequences will be.
WN: It doesn’t seem that there’s been much public outrage or dissent. Why?
Steinhardt: Well, there is a veneer of public support, but if you go down a level it shows that Americans are very skeptical about government intrusions into their rights. When you get past the veneer of support and deserved show of patriotism that all of us feel, and you look at specific proposals that have been made and concerns whether government is going too far, you find a different perception out there.
You’re beginning to see it in Congress. Even fairly conservative members like Reps. Dan Burton (R-Indiana) and Bob Barr (R-Georgia) are questioning tactics and the rhetoric coming out. We’re at the very beginning here. I expect that as more and more people are affected by the war against terrorism and loss of liberty, you will see more protest.
I think that will emerge as time goes on. They are skeptical because of past exaggerated claims by the Justice Department.
WN: When the FBI and the Justice Department said they wanted to interrogate thousands of Arab-Americans, some local police departments said that they wouldn’t go along. What does this represent?
Steinhardt: William Webster and other former FBI officials were quoted in the Washington Post as saying that the questioning of 5,000 men violated fundamental American values and was ineffective. They now recognize there have been diversion of resources and exaggeration of claims that are being made.
The consequence is not only a loss of liberty but also a diversion from the real hard work of preventing (another) Sept. 11. It’s not a particularly effective way to conduct an investigation. We’re all concerned about protecting our safety, but as we attempt to draw a balance between rights and safety, we should get some safety benefits. Most of what we see gives us no safety, but it infringes on rights.
WN: To go back to something you said earlier, can you talk about what exaggerated claims the Justice Department has made?
Steinhardt: We now know that for a number of years the Justice Department has been labeling things as “terrorism” that no common-sense American would label as (such). A disruptive drunk person on an airplane is labeled as a terrorist, while this person is not a terrorist. It doesn’t do us much good to divert our attention to people who don’t threaten our national security, which are just run-of-the-mill ordinary criminal cases. The ironically named USA Patriot Act, although styled as anti-terrorist, applies to ordinary criminal offenses.
WN: Can we expect to see any legislation along the same lines?
Steinhardt: There probably will be. One would have thought that we would have been at the end of the cycle with USA Patriot, but in the new intelligence authorization bill (H.R. 2883, sent to the president on Dec. 18) — that’s the authorizing act for expenditure of funds — there were once again attempts to expand foreign intelligence.
For example, blank warrants under the Foreign Intelligence Surveillance Act, when you didn’t know the person’s name or who the person was. There were things (that weren’t present) in the original legislation they were putting in through the back door on this authorization bill. We expect more legislation on border security and forms of national identification. There is likely to be additional aviation security legislation, which would rewrite foreign and domestic security laws to increase the power … intelligence agencies have and to write the courts out of the process.
WN: Don’t the courts have some oversight? What do you mean when you say the law would “write them out of the process?”
Steinhardt: A perfect example of this in the USA Patriot Act is the application of wiretap laws to the Internet, where you get Internet protocol addresses and URLs. The role of the courts couldn’t be more limited. They are rubber-stamping. All law enforcement has to do is come in and say they are doing an investigation and the court has to stamp it.
WN: What kind of surveillance will be conducted?
Steinhardt: Certainly over the next year or two we are going to see more application of Carnivore and the Magic Lantern worm that is functioning as a keystroke logger. We are not even going to know for 18 to 24 months, until we see prosecutions and reports made.
The actual numbers will come in during 2003 and 2004. That’s when we will get a real sense of what the numbers are. As for now, we will have no way to know it except anecdotally. I have spoken with Internet service providers who are receiving dozens of requests from the FBI to monitor. We will know about the use of increased surveillance in two ways: broad numbers from reports they are likely to make and prosecutions that are likely to be brought.
It will be a considerable period of time before that picture will begin to fill in. The law certainly authorizes a great deal more surveillance, and it appears they are using it, particularly in Internet communications.
WN: Is there notification if someone has been under surveillance?
Steinhardt: A long time after the fact. It could be as much as six months to a year. If it’s real-time monitoring and there was no prosecution made, it could be many months — many years — before the subject is notified. We’re moving beyond the interception of specific individuals to mass interception and filtering by law enforcement. Except by a general report to a court, we’re simply not going to know. We’ve moved beyond the days of FBI agents sitting in a darkened room somewhere, listening to a conversation that was picked up because someone put up alligator clips on a line.
WN: What technology can people use to avoid surveillance?
Steinhardt: There are some technologies that people can apply, but if law enforcement is interested in you, there may be a limited effectiveness. Look at the Scarfo case in Philadelphia. They literally placed a keystroke monitor on the fellow’s computer to intercept his communication.
They now go beyond that — they now have a virus or worm that electronically invades your system. It can function as a keystroke logger. Encryption is one thing you can do. You can use anonymous surfing, but the counter technologies are being developed by law enforcement.
Author: Ben Polen
News Service: Wired News