As part of his campaign to empower the nation’s law enforcers, President Bush has handed Congress a bill that would permanently expand government’s surveillance authority. By jeopardizing the Constitution’s balance between surveillance and privacy, this proposal challenges us to recognize not only what has changed in America but also what must remain the same.

The Anti-Terrorism Act (ATA)—previously entitled the Mobilization Against Terrorism Act (MATA)—would enhance many aspects of police power and is expected to come up for a vote this week. Perhaps most troubling is the proposed expansion of the FBI’s Carnivore Internet surveillance system, which can monitor and search all email. Today, Internet surveillance generally requires the cooperation of Internet service providers, which can monitor email once presented with a court order. But Carnivore, when installed directly on ISP networks, eliminates this buffer, granting police unimpeded network access.

Civil libertarians, fearing that Carnivore will be misused against innocent civilians, argue that the system gives Big Brother a dangerous window into citizens’ lives. But the FBI claims Carnivore is secure because it can be programmed—by FBI agents—to monitor only a single individual, or to record only an email’s destination, ignoring its text. While such surveillance generally requires judicial approval, ATA would allow warrantless surveillance in vaguely defined “emergency situations.” This proposal signals how, in the wake of September’s catastrophe, the FBI and other security agencies are fundamentally trying to shift America’s approach to law enforcement.

The national security establishment now portrays privacy and other civil liberties as relics of a pampered, pre-September 11th society. Attorney General John Ashcroft and FBI Director Robert S. Mueller have suggested that wiretapping restrictions were one reason the terrorist assault was not prevented. Broader use of Carnivore and other surveillance tools, they claim, could avert future attacks. But freedom from expansive surveillance is more than just a luxury.

It is a cornerstone of American democracy. America’s privacy concerns date back to the Founders’ understanding—expressed in Fourth Amendment protections against “unreasonable search and seizures”—that extensive government surveillance can harm free speech and association. For freedom and democracy to flourish, citizens must know government will not single them out because of their beliefs. Broad surveillance erodes this confidence and, while emergency measures should sometimes be tolerated, national security officials have not made the case that a permanent surveillance expansion is justified.

As details of the terrorist operation become clearer, so does the magnitude of the FBI’s incompetence, despite a 2001 counterterrorism budget of $423 million. According to the Washington Post, the Bureau has known since 1996 that terrorists were using U.S. flight schools. Two of the suspected hijackers were on the FBI’s “watch lists,” but were never questioned. The terrorist organization Al-Qaeda flooded U.S. intelligence with false lead and decoy plots. The FBI seems to have needed not more information, but a more intelligent approach to the information within its grasp.

At this juncture, more surveillance power is both unnecessary and unwise. Our security officials claim that now is a time for “trusts”, but their bungling demonstrates that they deserve more scrutiny, not less. The buffers that insulate citizens from intrusive searches must remain intact, and for this reason legislators must remind President Bush that any new course should be plotted with an eye to the past. Privacy and civil liberties are not relics. They are active, important principles that must be retained if democracy is to continue flourishing.

Justin Matlick is a Chicago-based senior fellow in information studies for the Pacific Research Institute in San Francisco. He can be reached via email at jmatlick@pacificresearch.org.