John Ashcroft's First Year as Attorney General

Reducing Search and Seizure Protections

Ashcroft also proposed to greatly expand the government's power of search and seizure at the expense of civil liberties.

The proposal sought to eliminate the requirement that surveillance under FISA (Foreign Intelligence Surveillance Act) be limited to surveillance directed at "agents of a foreign power," potentially allowing for increased surveillance of U.S. citizens and permanent resident aliens.11 The original purpose of FISA was to allow for secret electronic surveillance, searches of residences, and seizure of bank and other records, for the purpose of gathering foreign intelligence. As such, it provided few of the constitutionally mandated protections required during criminal investigations.12

Ashcroft's legislation included provisions permitting the sharing of grand jury information, with no meaningful review, wiretap information and other "foreign intelligence information" acquired in a criminal case with different federal agencies. This could permit investigators to share with the White House, for example, information collected about foreign policy critics of the administration.13 Such information sharing has been abused in the recent past, as when the CIA and FBI engaged in surveillance of, and shared information about, thousands of Americans, including civil rights leaders and opponents of American involvement in Vietnam.14

The amendments to FISA would also have deleted the requirement that FISA surveillance be used only when gathering foreign intelligence was "the" primary purpose of the surveillance, and allowed intelligence gathering when surveillance is only "a" purpose of an investigation.15 The Ashcroft proposal would have effectively allowed the authorities to use FISA surveillance in criminal investigations, essentially circumventing many of Americans' Fourth Amendment protections. And if information gathered under FISA was then used to jail an individual, that individual would not be entitled to notification that the government had seized information or property, or that his/her conversations had been monitored.16

The way the government can go about gathering information and conducting surveillance would also have been greatly expanded, allowing for greater latitude in the use of significant government surveillance on the Internet. The law prior to Sept. 11 allowed the government to obtain certain types of telephone information without a search warrant. Specifically, "pen registers" are used to record the outgoing telephone numbers dialed by any monitored phone, and "trap and trace devices" to record the incoming calls made to any monitored phone. Under Ashcroft's proposal, however, the law would have been expanded to cover Internet communications such as e-mail, web surfing and all other forms of electronic communication. Information generated by such technology is far more specific than mere telephone numbers, providing the addresses of web pages visited or the subject headings of e-mails and other information on the content of Internet communications.17 Ashcroft's proposal would have authorized the government to obtain such information without a search warrant

The Justice Department also sought to expand its use of "roving wiretaps," essentially creating a zone of no privacy around any individual, allowing the government to tap any phone or electronic device the monitored individual may use.18 Many civil libertarians saw the need to update the law to keep up with new cellular and other communications technology. They had concerns, however, about allowing overly broad warrants, believing the administration's proposals went too far by not including a reasonable balancing of individuals' privacy interests and establishing what amounts to a "no privacy zone" that follows a target of surveillance. Under these circumstances, it will be more difficult to ensure that innocent people are not subject to wiretaps.

In addition, the Justice Department sought to expand the government's power of forfeiture in criminal cases not directly related to terrorism. Ashcroft proposed allowing the authorities to take any property of an accused person before even proving that the individual had committed any crime.19 The legislation would also have allowed prosecutors to use information collected by foreign governments against U.S. citizens, even if the information was gathered in such a way that would have violated Fourth Amendment protections had it occurred in the United States.20

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