Giving Up Our Rights for Little Gain

Erwin Chemerinsky is a professor of constitutional law and political science at USC

Atty. Gen. John Ashcroft’s plan for fighting terrorism seems to include all the bad ideas for greater law enforcement powers that have been rejected over the years. The attorney general’s recommendations--presented Monday to the House Judiciary Committee--would give the government sweeping new authority to eavesdrop and monitor communications in the United States. The key problem is that the proposals would entail a massive loss of freedom without notably enhancing the war against terrorism.

The discussion about protecting civil liberties while fighting terrorism has been far too simplistic. Some loss of freedom may be necessary to ensure security; but not every sacrifice of liberty is warranted. For example, people accept more thorough searches at airports even though it means a loss of privacy. But strip searches and body cavity searches would be clearly unacceptable. The central question must be what rights need to be sacrificed, under what circumstances and for what gains.

The burden must be on the government to show that any significant loss of liberty is truly needed. Ashcroft already has repudiated some of his proposals, but many of the remaining ones fail this test. For example, a centerpiece of his recommendations is for the government to have the authority to conduct “roving wiretaps” to listen to all conversations of a particular person, unlike traditional warrants, which authorize listening to specific phones. The police could listen to every phone in the places where a suspect works or shops or visits.

This loss of privacy would not do much to enhance security. Ashcroft said that roving wiretaps are needed because suspects easily shift to new phones. But once the police learn that a person subject to a warrant has a new phone, a judge immediately could approve adding it to the warrant.


The majority of Ashcroft’s other proposals are no better. Some would make a shambles of the Constitution’s protections. For instance, Ashcroft proposed that the law be changed so that calls illegally intercepted by foreign governments could be used as evidence in U.S. courts. If federal, state or local police engage in illegal wiretapping, the fruits of the police misconduct are excluded from evidence. Ashcroft’s proposal would encourage U.S. police to circumvent the Constitution and to use foreign governments, like Canada, to illegally tap phones in this country.

Similarly, Ashcroft proposes giving the government expansive power to monitor electronic communications, such as visits to Web sites and e-mail. The government can open a person’s mail only after obtaining a warrant. The same standard should be used for monitoring the use of Web sites and e-mail communications.

The burden is now on Congress and the courts to scrutinize these proposals. Great care must be taken to not repeat the mistakes of the past where significant freedoms were lost in times of crisis without any gain in security.

During World War I, laws were enacted to punish critics of the war effort. Mild and ineffectual speech led to long prison sentences. During World War II, more than 100,000 Japanese Americans were uprooted and placed in what President Franklin D. Roosevelt called “concentration camps.” Nothing was gained in security from this unconscionable loss of freedom. Not one Japanese American was charged or convicted of any crime against the war effort.


In hindsight, these mistakes occurred because the public, Congress and even the courts were reluctant to challenge the executive proposals in a time of crisis. This mistake must not be repeated. Dissent is never disloyal. Patriotism means supporting the country but not any particular proposal.

On Sept. 11, the terrorists ended more than 6,000 lives and cost the economy incalculable sums; they took away our shared sense of safety and security. We must take great care to ensure that they not be responsible for unnecessarily taking away our freedom.