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WAR ON CIVIL LIBERTIES HITS A SPEEDBUMP
Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

"Watch out for well-meaning men of zeal! These words penned 74 years ago by U.S. Supreme Court Justice Louis Brandeis are no less relevant today. Brandeis was dissenting from a ruling that exempted wiretapping from the protections of the Fourth Amendment. The Supreme Court later reversed its decision, holding that the government must follow the Fourth Amendment when it electronically seizes our conversations. But under the guise of the 努ar on terror, the zealous men in Washington have launched a major new assault on our constitutional rights.

One of the most recent manifestations of this dangerous zeal is the new TIPS program. Under the Terrorism Information and Prevention System, Attorney General John Ashcroft seeks to recruit millions of Americans to spy on each other. TIPS is designed to ask volunteers, including letter carriers, utility employees, truck drivers and train conductors, to report 都uspicious activity to the government. TIPS was originally slated to be initiated this month in the nation痴 ten largest cities, and the Department of Justice hopes to recruit 1 million informants for a total population of almost 24 million.

Informant reports will then enter databases from which the government can create dossiers on its citizens. TIPS is reminiscent of the East German stasi, or secret police, who maintained files on millions of people. When asked how the data will be stored and used, Ashcroft has been less than forthcoming.

Operation TIPS will not only help the government spy on us more effectively. It will encourage neighbors to snitch on neighbors, and won稚 distinguish between real and fabricated tips. Anyone with a grudge or vendetta against another can provide false information to the government, which will then enter the national database.

Shortly after TIPS was unveiled, there came a public hue and cry. The United States Postal Service stated categorically it would refuse to allow its mailpersons to participate. Even the Washington Post, in a recent editorial, was alarmed by the prospect of TIPS: 鄭mericans should not be subjecting themselves to law enforcement scrutiny merely by having cable lines installed, mail delivered or meters read. The government seeks to use private citizens to circumvent the dictates of the Fourth Amendment. As the Post editorial says, 撤olice cannot routinely enter people痴 houses without either permission or a warrant. They should not be using utility workers to conduct surveillance they could not lawfully conduct themselves.

The House Select Committee on Homeland Security, headed by Rep. Dick Armey (R-Tex.), shelved the repressive program. In response to the public and congressional backlash, the Bush administration announced on August 9 that it would no longer solicit tips from persons with access to our homes. Laura W. Murphy, head of the American Civil Liberties Union in Washington, hailed the administration痴 澱ackpedaling on TIPS, saying, 的t痴 quite a relief . . . knowing that even the Ashcroft adminstration is not immune to public criticism. But the government still intends to enlist a multitude of workers to participate in TIPS this fall, leading Murphy to question whether the government has truly backed down or simply seeks to neutralize the criticism. The administration may be attempting to derail legislation which proposes to gut the program. And the Senate is scheduled to take up the TIPS program in the fall.

TIPS is just the latest manifestation of a steady dragnet by Attorney General John Ashcroft and the FBI to intimidate Americans and emasculate their civil liberties. Since the horrific attacks on September 11, Ashcroft has:

  • rammed the USA PATRIOT Act, which significantly lowers the standards for surveillance of telephone and computer communications, through a timid Congress;
  • inaugurated a new program of COINTELPRO-style surveillance activities, which were banned by Congress in the 1970s after civil rights leaders like Martin Luther King Jr. were targeted;
  • urged federal agencies to resist Freedom of Information Act requests, a vehicle for citizens to hold the government accountable by allowing them to request, receive and publicize public records;
  • ordered his agents to eavesdrop on conversations between attorneys and their clients, defying the oldest and one of the most important privileges in our society;
  • indefinitely detained hundreds of men of Arab, Muslim and South Asian descent in the United States and Guantanamo, Cuba, with no charges or suspicion of terrorist ties;
  • determined to set up internment camps to hold U.S. citizens in indefinite detention, and deny them their constitutional rights including the right to counsel and access to the courts;
  • and, in what New York Times columnist William Safire characterized as 鍍he new Ashcroft-Mueller diktat, the FBI has been granted sweeping new surveillance powers, to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity.

It is essential that people feel safe and secure in these perilous times. But we cannot have confidence that turning ordinary Americans into snitches or relaxing limitations on the FBI痴 spying activities will make us any safer. We must be vigilant to safeguard the liberties and freedoms that under gird a democracy. That means speaking out, and writing op-eds, letters to the editor, our congresspersons, the White House and the Department of Justice, to express our concerns. The government痴 backpedaling - even if temporary - from TIPS in the face of public criticism, demonstrates that we can affect official policy. If we uncritically succumb to the government痴 frightening surveillance campaign, we will find ourselves in the midst of a police state.


Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in San Diego, is on the national executive committee of the National Lawyers Guild.

August 19, 2002

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CONTRIBUTING EDITOR

JURIST Contributing Editor Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is editor of the National Lawyers Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the University of Santa Clara School of Law.