As a result, our laws and regulations now permit the government to do the following:
- Detain non-citizens facing deportation based merely on the Attorney General's certification that he has "reasonable grounds to believe" the non-citizen endangers national security. In other words, the legislation confers new and unprecedented detention authority on the Attorney General based on vague and unspecified threats to the national security.
Although the law requires that immigration or criminal charges must be filed within seven days, these charges need not have anything to do with terrorism, but can be minor visa violations of the kind that normally would not result in detention at all.
- Search your home, rifle through your effects, all without providing you the opportunity to scrutinize the search warrant until several days after the search. The new law refers to this infringement on due process as "delayed notice" searches. The ACLU has dubbed them "sneak and peek" searches.
When I was on Nightline, Ted Koppel asked me what was so objectionable about such searches, especially since law enforcement agents are required to obtain a search warrant. The answer is that agents frequently get it wrong. They may have the wrong name on the warrant, the wrong address, the wrong judge. Now there is no way of catching these mistakes until after the search has been completed. That is too late to assert your constitutional right to be left alone.
- Monitor confidential attorney-client conversations in any case in which the Attorney General finds that there is "reasonable suspicion" to believe that a particular federal prisoner "may" use communications with attorneys or their agents "to further or facilitate acts of terrorism." In short, the Justice Department, unilaterally, without judicial oversight, and with no meaningful standards, is to decide when to monitor the confidential attorney-client conversations of a person whom the Justice Department itself may be seeking to prosecute.
What makes the regulation even more disturbing is that it is completely unnecessary. The Department of Justice already has legal authority to record attorney-client conversations by going before a judge and obtaining a warrant based on probable cause that the attorney is facilitating a crime.
- Enhance the power of the FBI to spy on Americans for "intelligence" as opposed to criminal purposes, and to share highly personal information with the CIA and Department of Defense - all without meaningful restrictions on how the information is used or re-distributed.
Many of us will remember the FBI's abuse of power under Director J. Edgar Hoover. In 1976, Senator Frank Church held high-profile hearings in Congress in which he and his fellow Senators concluded that the FBI, under its infamous Counter Intelligence Program (COINTELPRO), had harassed and disrupted groups and individuals like Dr. Martin Luther King who posed no threat of violence or illegal acts on behalf of a hostile foreign power. Instead they were spied on because of their political views and lifestyles. This is not the sort of history our country can afford to repeat.