BY THE SECOND WEEK OF AUGUST, instructors at the Pan Am Flying Academy in Eagan, Minnesota, had become so suspicious about the behavior of a new, foreign student that they were moved to contact the FBI's field office in Minneapolis. One Zacarias Moussaoui, a French citizen of Moroccan extraction in his early thirties, had paid $8,300 in cash for lessons in the operation of a Boeing 747 jetliner. He wanted to know how to open a locked cockpit door from the outside. He wanted to know what in-flight information the plane's onboard computers relayed to air traffic controllers on the ground. He wanted to know what emergency security procedures its pilots and crew were directed to follow. And he wanted to know how to steer a jumbo jet, but not how to take off or land. Zacarias Moussaoui was making the Pan Am Flying Academy mighty nervous, and the school thought the FBI might want to know about him. And the FBI did want to know about him. The Bureau had been aware "for years" and "from multiple sources," it has since been reported, that suspected terrorists with ties to Osama bin Laden were receiving training on jetliner simulators at commercial facilities all across the United States. This Eagan, Minnesota, character seemed like he might be one of them. So agents in Minneapolis asked their Bureau and Justice Department superiors in Washington to secure a warrant to tap Moussaoui's phone and search his computer hard drive. But they were rebuffed--even after the French intelligence agency sent Washington a classified cable on August 27 indicating that Moussaoui had extensive ties to Islamic terrorist organizations and had been spotted, as recently as two months before, in or around Afghanistan. Under the Foreign Intelligence Surveillance Act of 1978, you see, a panel of district court judges will approve a secret physical or electronic search only when federal law enforcement authorities can show "probable cause" to believe that a suspect is functioning directly for an overseas government or terrorist organization--and only when the "primary purpose" of the proposed search is the gathering of foreign intelligence information, not the accumulation of evidence for a criminal prosecution. Where Zacarias Moussaoui was concerned, the Justice Department reasoned, correctly it would seem, that the FBI could satisfy neither requirement. The department did manage to get the man off the streets. He was arrested on August 17 for having an expired travel visa, which apparently prevented him from boarding and helping hijack the United Airlines jet that crashed in rural Pennsylvania on September 11. But it was only after that crash that the FBI got a peek at Moussaoui's apartment, where they would earlier have found 747 flight manuals. And at his computer, where they would earlier have found a great quantity of alarming information about Osama bin Laden. And at his telephone records, where they would earlier have found leads to the identity of at least one World Trade Center conspirator, pilot Mohammed Atta. It's conceivable that the Foreign Intelligence Surveillance Act of 1978 kept the FBI from preventing the greatest one-day loss of civilian lives in American history. And House Republicans have been all over this issue like flies on glue. Trouble is, they have devoted the bulk of their energy against a modest Bush administration proposal to fix some of the Surveillance Act's manifest flaws. "The question all Americans need to be asking," says Rep. Bob Barr of Georgia, who has led his party's fight in the House Judiciary Committee, "is 'when is enough enough?'" Should the FBI secure approval for secret, prophylactic searches concerning future Zacarias Moussaouis, Barr warns, it will represent a "vast expansion of government power" to begin "dismantling constitutionally protected safeguards and diminishing fundamental rights to privacy." No doubt many things must change in the wake of the September 11 mass murders in New York and Washington. But whatever else we do, Bob Barr insists, we "must not . . . expand law enforcement's investigative authority." Rep. Barr is in fever-swamp territory here. And a great chunk of the House GOP, joined by many of the "conservative" interest groups that are generally friendly to Republicans on Capitol Hill, have followed him into the bog. The executive branch of the federal government already enjoys an inherent, plenary power under Article II of the Constitution to conduct warrantless searches for foreign intelligence purposes. No U.S. court, anywhere, has ever held otherwise. All that the Bush administration's anti-terrorism proposal would do--for example, by expanding the legal definition of terrorist activities so that it clearly includes what Zacarias Moussaoui was up to in Eagan, Minnesota--is eliminate a statutory basis for suppression of search-derived evidence in terror-related criminal trials. If it sounds technical and obscure, that's because it is. But it promises what most normal people would consider a welcome result: The FBI will be less gun-shy in the future about initiating surveillance of alien terrorists in our midst. This is what Rep. Barr calls a "vast expansion of government power" and, though the proposed reform does not apply to U.S. citizens or permanent residents, somehow a threat to civil liberties. Similarly, and unrebutted by their allies in the congressional Republican leadership, representatives of putatively mainstream conservative "public interest" organizations worry aloud that if the legal definition of terrorist activities is at all expanded then the Justice Department will willy-nilly begin prosecuting American citizens, under anti-terrorism statutes that carry life sentences upon conviction, for "unauthorized use of automatic teller machines" at local banks. These so-called conservatives denounce as "guilt by association" an executive branch proposal to authorize deportation proceedings against visiting aliens who are . . . well, guilty of active association with known international terrorist groups. In response to an administration request that the attorney general be given increased latitude to detain in custody otherwise deportable aliens who pose safety or security risks to American citizens, the same conservatives evoke, with a great show of horror, the infamous World War II-era internment of Japanese Americans. That those Japanese Americans were actual citizens against whom no evidence of treason or other criminality existed--and that the detention of deportable aliens for national security reasons is unquestionably constitutional--goes unmentioned. Nor is it explained how a proposal to authorize, in terrorism investigations, the collection of personal information on file at educational institutions like the Pan Am Flying Academy would, in the words of one leading conservative speaking "in defense of freedom," thus "infringe on the privacy rights of all students throughout the nation." Such self-styled defenders of freedom on the right are pleased as punch now to be making common cause with the left against what one of them calls "domestic enemies of the Constitution"--a group of saboteurs whose activities are apparently directed by the president of the United States. But this much celebrated "left-right" coalition is not what it appears to be at first glance. Truth be told, its most prominent member on the "left," the ACLU, has raised relatively few objections to recent Justice Department anti-terror proposals--and has done so in much less strident language than lately issues from the House of Conservatism. Moreover, and much more significantly, it is not the left-leaning political party that has aggressively attempted to dilute and restrain the executive branch's response to the events of September 11. Last Thursday in the Democratic-controlled Senate, majority leader Tom Daschle muscled through, by a 96-1 vote, a piece of omnibus anti-terrorism legislation that grants the Justice Department most of the significant investigative tools it has requested. TheRepublican-controlled House, by contrast, until it ran out of time last Friday and adopted most of the Senate bill instead, had planned to approve a very different piece of legislation, one denuded of several valuable weapons against terrorism that Bob Barr and his allies bizarrely contend are threats to the Bill of Rights. House Republicans are reported still to be hopeful that they can circumscribe the legislation's new federal police powers when a final version is negotiated in conference with the Senate. House Republicans are reported, too, to be on the "verge of mutiny" against George W. Bush's White House for the low priority it has placed on tax cuts since September 11. Amazing. Five thousand-plus people are slaughtered by a foreign terrorist attack on the United States, and the House Republican party's first instinct is hysterical recoil from the vigorous exercise of federal authority. Such a political party is fundamentally unserious, dangerously unmoored from reality. And a fundamentally unserious party is a party that cannot be trusted to hold power in the nation's legislature, especially at a time, like this, of genuine emergency. It is an established pattern of history that a sitting president's political party loses seats in Congress during mid-term elections. If that pattern holds, and the House of Representatives goes Democratic next November, House Republicans may have only themselves to blame. David Tell, for the Editors October 22, 2001 - Volume 7, Number 6
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