As some of the hysteria that immediately followed the Sept. 11 terrorist attacks has subsided, a growing number of communities, scholars and others are questioning whether they've been asked to make a false choice between national security and civil liberties.
At the heart of the debate is the briskly enacted USA Patriot Act, which by October 2001 had given federal law enforcement authorities easier access to voluminous amounts of information about people, making it simpler to tap their phones, search their homes without warning and even monitor the books they check out at the local library.
The Justice Department says its enhanced tools have been valuable in the war on terrorism and, in fact, has internally discussed an even more controversial sequel to the law that has an unusual coalition of liberals and conservatives up in arms.
"I think they've gone way overboard," says Herman Schwartz, a professor of constitutional law at American University.
More than 100 communities, including Detroit, agree with him, passing resolutions that pointedly challenge the fast-tracked law that gave federal law enforcement officials sweeping new authority to make it easier to investigate, charge and convict suspected terrorists.
Some cities actually have advised their police officers and other municipal employees against cooperating with federal investigations if they deem them in violation of the Constitution.
For a bill that passed the often polarized U.S. Senate with only one nay vote, the USA Patriot Act has become a political hot potato.
The GOP chairman of the House Judiciary Committee, Rep. James Sensenbrenner of Wisconsin, said he would let the law's 2005 sunset provision be repealed over his "dead body." The Republican chairman of the Senate Judiciary Committee, Sen. Orrin Hatch of Utah, meanwhile, was leading the recent effort to lift the sunset until agreeing to back off temporarily as part of a pact over a different bill.
"Why would we simply sunset these provisions when we know full well that the terrorists will not sunset their evil intentions?" Hatch wrote in an column for USA TODAY. "There is no logical reason for our nation to lay down some of its most effective arms while fighting this war."
U.S Attorney General John Ashcroft and his aides have denied that constitutional rights to due process and privacy have been marginalized and say there's a lot of confusion over what the Patriot Act really changed.
"In many cases, these new tools simply enable officials to use information to which other government entities already have access," Viet D. Dinh, assistant attorney general in charge of the Justice Department's office of legal policy, told lawmakers last week. "In other instances, they give agents permission to use information that already is available to other members of the public."
One of the agency's most coveted tools is an amendment to the Foreign Intelligence Surveillance Act that previously allowed national security officials and their law enforcement counterparts to share information only if the "primary purpose" of the investigation was to protect the country. Under the Patriot Act, that only has to be a "significant purpose" of an investigation.
Monitoring mosques
The expanded authority helped prosecutors obtain the indictment of Sami Al-Arian, an alleged member of the Palestinian Islamic Jihad in Tampa, Fla. He had for years been on the U.S. watch list, but the coordinated effort allowed criminal investigators a look at "the full range of evidence of the PIJ operations in which Al-Arian allegedly participated," Dinh said.
Ashcroft has approved about 170 emergency domestic spying warrants, triple the number used in the previous two decades, allowing phone taps and physical searches for 72 hours before investigators have to take their intelligence requests to the "spy court," or Foreign Intelligence Surveillance Court.
Some of the new powers aren't a direct result of the Patriot Act, but are due to Ashcroft relaxing guidelines for FBI agents.
Now, even if they don't suspect criminal activity, FBI agents can attend public gatherings, such as meetings at mosques. (The FBI says fewer than 10 field offices have dispatched agents to the Muslim places of worship.)
Critics say that kind of monitoring opens the door to violating a person's freedom of assembly and expression.
But Dinh says, "If terrorists open their meetings to the public, FBI agents ought to be able to accept the invitation."
Shrouded in secrecy
Though the Bush administration seems to be backing off its desire to close all deportation hearings to the public, that kind of secrecy is one of civil libertarians' top objections.
"By closing off hearings about the most fundamental question about whether someone should be allowed to stay in the country, we don't create security but we do create cynicism and allow the government to operate in secrecy and privacy in a way they don't need to," says Tulane University law professor M. David Gelfand.
"They're collecting more and more information about us, information they don't need, and it's actually going to slow them down. They're trying to conduct their activity even more privately and secretly, especially things that should be public like deportation hearings."
Schwartz says the problem with intelligence prior to the Patriot Act wasn't that the United States didn't know very much, "but that we didn't know what to do with it." He's reminded of the sobering comment made about the Sept. 11 attackers by former deputy director of the FBI Bob Bryant.
"We didn't know what we had. We didn't know what we knew," Bryant said of the lack of analysts and computers in the 2002 book, "The Bureau: the Secret History of the FBI."
Too much information
One of the major problems with the Patriot Act and related administrative programs is that far more information is being gathered than the government can possibly process, says Christopher H. Pyle, a professor of politics at Mount Holyoke College.
"We aren't likely to enhance our security, we're likely to weaken it," Pyle says. "We are collecting oceans of information from databanks of all kinds and then swapping it widely among many agencies, and then storing it forever in computer databanks.
"And much of this information will be about the private lives of persons who are not criminal suspects, but who may know somebody who is suspected of associating with or supporting an alleged terrorist group, foreign or domestic. And once that information gets into the databank, correct or not, it will be there forever."
Despite the Patriot Act's easy passage in Congress -- only Sen. Russ Feingold, D-Wis., voted against it in that chamber, and the House passed it 357-66 -- it has since spawned a peculiar coalition of groups that oppose it.
It's not often that the liberal American Civil Liberties Union sits down at the same table with a conservative group like the Eagle Forum. But the liberty-minded and government-hands-off types are united in opposition.
'False dichotomy'
"It's part of the beauty of our democracy that people who often disagree on very important issues can work together to make sure important fundamental values aren't sacrificed in times of crisis," says Tim Edgar, legislative counsel for the ACLU.
They believe Americans don't have to give up any of their liberty to get security, and in fact believe the mere suggestion of it is somewhat anti-American.
"That's a false dichotomy between freedom and security," Gelfand says.
Kary Moss, executive director of the ACLU in Michigan, says the concerns helped fuel a membership increase of 35 percent in the last couple of years. Nationally, the ACLU's membership has exceeded 400,000, and in Michigan, it's an all-time high of more than 10,000.
"Some people might say sure, whatever makes us safer," Moss says. "But if you were to ask them should police be able to come in your house without a search warrant, should your phone be tapped without a search warrant, most people are going to say no.
"So many of the policies promulgated since Sept. 11 are going to be ineffective. People accept them on the assertion that they are going to make people safer, but not based on any reality," Moss added.
James X. Dempsey, executive director of the Center for Democracy and Technology, which promotes civil liberties in digital communications, says the legal powers need to be subject to greater checks and balances.
"We need limits on government surveillance and guidelines for the use of information not merely to protect individual rights but to focus government activity on those planning violence," Dempsey told lawmakers. "The criminal standard and the principle of particularized suspicion keep the government from being diverted into investigations guided by politics, religion or ethnicity."
Deserved or not, the Patriot Act has become associated with a fear of Big Brother in some communities.
"This particular act should be a matter of concern not only for Arab Americans and Muslim Americans, but all Americans," said Rana Abbas, public affairs director for the American-Arab Anti-Discrimination Committee in Dearborn. "You have to wonder what we have forsaken for the sake of security."
Robert E. Precht, a law professor at the University of Michigan, said he thinks a climate of fear is taking an emotional toll on Americans who seem more likely to presume guilt than innocence.
"We also have to look at our own hearts. Are we as a people overly suspicious, have we as a people abandoned this idea of the presumption of innocence?" Precht said. "Those are over time much greater threats on civil liberties than particular trials or than particular actions of government officials in my mind."
You can reach Lisa Zagaroli at (202) 662-7382 or lzagaroli@detnews.com