Unleashed Federal Power Is No Cure for Terrorism

Glenn Harlan Reynolds is an associate professor of law at the University of Tennessee

Benjamin Franklin famously wrote that those who would trade an essential liberty for a little temporary safety deserved neither. Yet the sponsors of the so-called Comprehensive Antiterrorism Act would have us do worse: They would have us trade a lot of liberty for no increased security at all.

Introduced as a response to the Oklahoma City bombing, the legislation would dramatically increase federal law enforcement power. Yet, despite the claims of its sponsors, it has little to do with terrorism, and (as Atty. Gen. Janet Reno admits) it would not have prevented the bombing if it had been in force a year ago. Instead, it would simply enact longstanding worth of bureaucratic "wish lists" into law.

Among other things, the bill would authorize federal agencies to gather credit reports, employment records and travel information without a warrant or even a suspicion that the individual in question has done anything wrong. It would turn many things currently governed by state law into federal crimes of "terrorism" under language so broad that shooting a stop sign with a .22-caliber rifle (a common sport among good ol' boys in my neck of the woods) or hijacking a bicycle would become "terrorist acts" subject to stiff minimum sentences. Federal wiretap authority would be drastically expanded, the right of habeas corpus (called the "Great Writ" by the framers of our Constitution) would be virtually gutted, and the use of secret evidence would be permitted in star chamber-like proceedings against legal resident aliens--and, quite probably, eventually against U.S. citizens as well.

Despite the steady growth of federal criminal law over many decades, this bill would represent a real break with traditions of limited federal power.

How did we get into such a mess? It comes from the unappealing zone where political imperatives meet bureaucratic opportunism. After the Oklahoma City bombing, President Clinton and our legislative leaders felt the need to look as if they were doing something, even though the FBI had suspects in hand within days. In response, various federal agencies dusted off proposals that had been previously rejected, and presto, we had a "comprehensive antiterrorism" bill.

There are two surprising things about the politics of this bill. The first is that it is so bad that it has generated a diverse coalition of strange political bedfellows in opposition, including the ACLU, Gun Owners of America, the American Friends Society and many other groups, left, right and center. The second is that it has substantial support among Republicans who otherwise claim that the 1994 elections were a mandate for less government intrusion. Many of these Republicans feel a political need to vote for something with "antiterrorism" in its name before the 1996 elections. But if truth-in-advertising laws applied to legislation, this bill would be called the "Bureaucratic Empowerment and Government Expansion Act of 1996." Would Republicans support that? Judging by deeds, not words, they already are.

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