Front Page















The Hilla-Reno Test - October 27, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Oops, they did it again. Congress passed another bill that significantly increases the power of the federal government. It is for our protection, so they tell us.

Just as in the past, the bill was rushed on through. There was very little time for anyone who was actually voting on the legislation to review its details and, as usual, this is where the devil is. The bill has already been signed into law by President Bush and will be implemented immediately.

Benjamin Franklin warned us that if we were willing to give up liberty for safety, we would be deserving of neither. The truth is it doesn't matter how much we increase government's power or how many pieces of legislation we pass or how many armed guards we assign. We will never be able to protect ourselves from every conceivable type of terrorism.

There is, however, a way to create a safer nation for our citizens, and pre-1993 America provides us with a clue. Prior to 1993, terrorist activity did take place at our embassies and our military facilities overseas, but no terrorist activity occurred on our continental soil. This was because an invisible, but by no means imperceptible, "wall" kept our nation safe. It was the wall of deterrence.

Our enemies were afraid of us. They feared our capabilities and they feared our determined spirit. As a nation, we must come to the understanding that safety will return to our shores when, and only when, we are ready to strike back against terrorism in a shocking and decisive way, so as to re-establish fear in the hearts and minds of those who hate us.

If there is a bit of good news about the anti-terrorism bill, it is that it could have been much worse. Liberty-loving members from both political parties formed a coalition and were able to get some compromise measures placed into the final legislation. Here's the good news/bad news breakdown.

  • There is a sunset provision that will automatically kill the more draconian aspects of the legislation. But it doesn't take effect until 2005.
  • Law enforcement officials are still obligated to obtain traditional wiretap orders before looking at the content of e-mail or Internet sites, and must convince a judge there is probable cause that a crime is involved.

    But when investigators want to see the names of senders or receivers of e-mail, or when they want to look at website addresses, all they have to do is convince a judge that the information is "relevant" to a current and ongoing criminal investigation.

    The electronically savvy know there is a world of very private information connected to subject lines, names of senders and recipients, and URLs. When law enforcement personnel get to this stage, can we really expect that they will go back to the judge's chambers for the requisite wiretap order before proceeding?
  • The American dream of property ownership is still intact. But investigators are now allowed to "sneak and peak." Under the new legislation, investigators who believe that informing a property owner would somehow compromise an investigation will be able to carry out certain authorized searches without ever having to notify the property owner.
  • The Foreign Intelligence Surveillance Act (FISA) still works to strengthen counterintelligence. But FISA is now so bloated by new modifications that it threatens to swallow up ordinary criminal investigations. Wiretaps can be made, and warrants on personal records can be issued, without public disclosure.

Portions of the bill are necessary as we wage war against terror. For example: allowing FBI agents and other federal investigators to share information with counterintelligence specialists about criminal grand juries and wiretaps; cracking down on non-citizens by permitting temporary incarceration or detention; disallowing possession of biological agents; stopping non-citizens who belong to terrorist organizations from entering the country; and tripling the number of agents on the Canadian border. These measures make sense.

But there is a danger, verifiable by history, whenever governmental power is increased to provide security for people. The fundamental notion of limited government exists to restrain the characteristic growth of state power. Some provisions in the anti-terrorism bill provide little, if any, limitation on governmental action.

Sadly, our representatives seem to suffer from a historical and civil amnesia in their hasty approach. Informed citizens must help others to realize that such laws undercut the inalienable and individual rights we seek to protect in our fight against the purveyors of terror.

Here's a test to rate the acceptability of the new law. Just ask yourself, would this legislation be acceptable no matter who was in office? True or false. Say, for instance, Hillary Rodham Clinton was president and Janet Reno ran the Justice Department.> Would your comfort level be the same? Individual liberty is dependent on the score, and this exam is pass/fail.

Reproduced with the permission of . All rights reserved

Copyright © 2001 -
James L. Hirsen, J.D., Ph.D.

All Rights Reserved