Liberty curtailed in land of the free

American civil liberties organisations were desperately trying to regroup yesterday as John Ashcroft, the attorney general, prepared to put a draconian set of counter-terrorism proposals to Congress in response to last week's attacks.

Mr Ashcroft says he expects Congress to vote on his plans as soon as it reconvenes tomorrow after a break for the Jewish New Year. He insists the new laws will be constitutional.

"We need some upgrades in terms of the legislative framework," he said, "and to make sure that our capacity to track criminals hasn't been rendered antique by the advances in technology."

Yet the draft legislation - likely to turn into the mobilisation against terrorism act - was not even finalised yesterday, and early leaks of the proposals alarmed campaigners by suggesting that they could give the administration even broader powers than expected.

One reasonable-sounding provision is believed to give the government power to deport any non-Americans suspected of facilitating terrorism. But Professor David Cole of the University of Georgetown Law Centre says the definition of terrorism is "quite stunning".

Formerly it was defined as "any use or threat of use of a firearm other than for mere personal monetary gain" (which thus excluded armed robbery). Now any weapon can be involved, which means a foreigner could be detained without trial for pulling out a penknife.


Prof Cole said decisions would be left in the hands of low-level justice department officials, who would only have to convince each other that the people involved represented a terrorism threat. Though there would be scope for a court hearing before final deportation, there would be no opportunity to offer new evidence.

Other sections, still awaited yesterday, are expected to give the administration new powers to tap phones and combat money laundering. Prof Cole said: "My concern is that the US has historically over-reacted in times of fear, indulging in guilt by association and giving government the power to act against individuals without procedures necessary to distinguish the guilty from the innocent."

Precedents include not only the long-discredited round-up of Japanese-born Americans after Pearl Harbour and the anti-communist excesses of the McCarthy era in the 1950s but the lesser-known Red Scare roundup of 1920.

There is also the response to the Oklahoma City bomb of 1995 which first widened the definition of aiding terrorism so that, according to Prof Cole, anyone sending a textbook to a West Bank school which turns out to be run by Hamas could face a 10-year jail sentence.

If apartheid still existed, supporters of the African National Congress would have been equally vulnerable.

Normally-voluble pro-citizens' rights groups have been struck dumb by the destruction of the World Trade Centre. The long-established American Civil Liberties Union has refused to answer questions for the past week. "I'm not at liberty to say anything," said a press officer, without any sense of irony.

The group has now finally issued a press release, urging Congress to follow "a deliberate and democratic process" before passing new laws. And it is expected to be involved in a new coalition, tentatively called In Defence of Freedom, likely to be launched later this week to argue against ill-considered laws and potential targeting of innocent Arabs.

British campaigners are alarmed because of their own experience of the Prevention of Terrorism Act, imposed as a temporary measure after the 1974 Birmingham pub bombings, regularly renewed and finally made permanent.

"On the one hand, the Bill of Rights in America is very difficult to amend so there are some basic rights that remain protected," said John Wadham, director of Liberty. "We don't have that in the UK, and so the right to silence, for instance, could not be eroded as easily as here.

"Against that, lawyers in this country are much better plugged into international law and principles especially now that we have the Human Rights Act. The US is not a signatory to some of the international human rights agreements that have emerged recently, and people there are far less plugged into the debates going on round the world."

All these arguments remain the province of an exclusive minority in the US, given the current national mood. At the best of times, the presumed American distrust of government is hardly evident on a day-to-day basis. There may be wild men in log cabins way out west who refuse to admit the legitimacy of government, but even those with the loudest mouths generally have social security numbers and driving licences, which function as effective and quasi-compulsory ID cards.

Most citizens are docile in their submission to authority, and neither Congress nor the public has any taste for rebellion at present. But the lesson of history is that the consequences of ill-considered legislation usually outlast the danger - however extreme - it is designed to combat.

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