We’re watching you: national security and privacy issues

During the go-go years of the Great Society, lopsided Democratic congressional majorities all but ensured that President Lyndon Johnson could work his will with the lawmakers.

Despite his winning ways, at one point LBJ seemed thwarted in his efforts to expand inspections of meat-processing plants. Large packers, aligned with the Teamsters, strongly fought the plan on Capitol Hill.

Johnson summoned a meeting of key lawmakers and told them: “We’ll give a bit and term it a ‘fair compromise.’ And we’ll call the new legislation ‘The Wholesome Meat Act of 1966.’ They won’t want to go on record as having voted against ‘wholesome meat,’” he accurately predicted.

Something similar occurred after Sept. 11. With a minimum of deliberation, Congress enacted the USA PATRIOT Act only six weeks after the terrorist attacks.
Among other matters, the law vastly expands the kind of records, online and off, that the government may seek with only a pro forma subpoena and without the need of court review.

U.S. citizens can no longer assume that what they do online or the books they check out from the library or their bank transactions or their phone calls are free of FBI surveillance.

Moreover, all that can occur without the need for the government to offer any evidence that such data are involved in any way in any criminal or terrorist activity and without having to seek and obtain a judicial search warrant.

Since privacy concerns span the political spectrum on Capitol Hill, it took a deep sense of vulnerability in the aftermath of Sept. 11 for the lawmakers to cast them aside and vote for the USA PATRIOT Act. Even at that, they wrote a sunset provision into the law, under which it will expire in 2005.

The outcome was predictable: The Justice Department, wrapping itself in a “national security” shroud, stonewalled the lawmakers when they sought answers to even the most innocuous questions. The media were simply stonewalled.

Some members came to realize they would be heeded only if they pushed back.

One of them was Rep. James Sensenbrenner, the Wisconsin Republican who is chairman of the House Judiciary Committee. Last summer, Sensenbrenner and committee’s ranking Democrat, John Conyers Jr. of Michigan, asked the department for basic statistical data about how it was using its powerful new surveillance tools.

The department stalled for so long that Sensenbrenner threatened to subpoena Attorney General John Ashcroft and to oppose renewing the act.

Sensenbrenner reported to the Milwaukee Journal Sentinel that he had told Ashcroft: “If you want to play I’ve got a secret, good luck getting the PATRIOT Act extended. Because if you’ve got bipartisan anger in the Congress, the sunset will come and go and the PATRIOT Act disappears.”

Beating a tactical retreat, Ashcroft thereupon launched a three-pronged damage-control effort.

First, he soft-soaped Sensenbrenner, arranging to have lunch with him regularly, bringing him into the “national security” tent.

Second, he persuaded Sen. Orrin Hatch (R-Utah), the Senate Judiciary Committee chairman, to sponsor legislation that — in the warm afterglow of the Iraq War — would repeal the law’s sunset provisions and make it permanent.

Third, he pulled the plug, for now, on further expansion of the government’s snooping powers under a proposed “Domestic Security Enhancement Act of 2003,” promptly dubbed Patriot II.

David Cole, a Georgetown University law professor who reviewed the draft legislation for the Center for Public Integrity, said the act “would radically expand law enforcement and intelligence gathering authorities, reduce or eliminate judicial oversight over surveillance, authorize secret arrests, create a DNA database based on unchecked executive ‘suspicion,’ create new death penalties and even seek to take American citizenship away from persons who belong to or support disfavored political groups.”

But on a strategic level, the Bush administration remains on course.

Appearing earlier this month before the annual meeting of the American Society of Newspaper Editors in New Orleans, Vice President Dick Cheney rejected a widespread perception among the editors that the administration takes a cavalier approach toward openness and civil liberties.

Speaking on the same day that U.S. troops toppled Saddam Hussein’s statue in Baghdad, Cheney said the program of embedding reporters with troops in Iraq proved that the administration is committed “to the free flow of information about very important events.”

Were he still around, LBJ would no doubt have approved and counseled Cheney to call it the “Wholesome Embedding Policy of 2003.”