Who's for the Bill of Rights?

The Return of J. Edgar Hoover

Do you think you hold the reins of government the way Thomas Jefferson and James Madison thought we should?
Ralph Nader, quoted by Lenora Todaro, The Village Voice, August 1


There is no way I can vote for the chief executioner of the United States. Since George W. Bush became governor of Texas in 1995, he has executed more people—144 up to now, recently including a mentally retarded prisoner—than any governor in the country.

Neither Al Gore, Joseph Lieberman, Bill Clinton, nor Hillary Clinton will criticize Bush for this heap of corpses, because all four are ardent advocates of capital punishment. Even after Republican governor George Ryan began to change public opinion on killing by the state when he ordered a moratorium on executions in Illinois, New Democrat Al Gore said he saw no reason for a national moratorium on capital punishment.

Not mentioned once during all the coverage of the Republican convention was the grim fact that, even forgetting Bush's enthusiasm for lethal injections, the Bill of Rights is in worse condition in Texas than in any other state (as I detailed in the May 8 Legal Times). Politically connected court-appointed attorneys for the poor are so incompetent that last year the usually fractious Texas legislature unanimously passed a bill creating, for the first time, regional public defenders' offices with full-time lawyers in rural areas. The bill also mandated an annual report on the quality of legal representation for all the state's indigent defendants.

George W. Bush vetoed that bill. Justice in Texas has been bitterly described by Elizabeth Alexander, director of the national ACLU Prison Project, who said: "Each time a lawyer meets his client for the first time 15 minutes before a hearing only to urge the client to plead guilty so that the judge can clear his trial calendar and the lawyer can turn a quick profit . . . And each time a judge demands a campaign contribution from a lawyer in exchange for appointments, it will be on Governor Bush's record—and should be on his conscience."

His "compassionate conservative" conscience?

Clinton and Gore have an even worse record on constitutional rights. In an understatement, Ralph Nader has called that record "abysmal." Under Clinton, without a word of dissent from Gore, the writ of habeas corpus—the right of a defendant to get a federal judge to review his or her trial and sentence after all state postconviction appeals have been exhausted—has been reduced to one year.

Even if DNA evidence were available within only a year, there are many capital cases with no evidence containing DNA. Moreover, the prisoners you've read about being released from death row because of DNA or new evidence are people who have been imprisoned for eight, 10, 12 years or more. Now, innocent prisoners will die because of the very abbreviated review period imposed in Clinton's 1996 Anti-Terrorism and Effective Death Penalty Act. And President George Bush will surely not move to have that bill repealed. Nor will New Democratic Party president Al Gore.

And the FBI, encouraged by the Clinton-Gore administration, is now empowered to tap not only the particular phone authorized by a warrant but every phone the target uses. This "roving wiretap" law—introduced by Republican Bill McCollum of Florida—is an unprecedented, sweeping violation of the Fourth Amendment.

Except for Bob Barr of Georgia, the Republicans in Congress had no objection, and the Democrats, loyal to the president, were silent. Before Clinton and the New Democrats took over the party, there were Democratic congressmen who protected the Constitution—Don Edwards of California and Harold Washington of Illinois among them.

Harold Washington, a fierce civil libertarian, later became the first black Democratic mayor of Chicago, beating back the authoritarian Daley machine, one of whose members, Bill Daley, is now Al Gore's campaign manager. You may have noticed that civil liberties have not been mentioned by Gore or Bush.

This year, a Republican bill was surreptitiously introduced into Congress that would effectively revive J. Edgar Hoover's "black bag jobs"—warrantless secret searches of homes and offices that became a scandal of the Nixon administration.

The new measure, initiated by Republican Orrin Hatch's staff, would allow federal agents to search your home or office while you're away, seize or copy things, and give no notice of what they've taken for 90 days—a term that can be easily extended by a judge. Moreover, if so-called law enforcement agents take anything "intangible," they don't have to notify you at all until they prosecute you. That means they can copy what's on your computer screen or on its hard drive. The only difference between this assault on the Constitution and J. Edgar Hoover's black bag jobs is that a warrant is required. But most judges are quickly persuaded by federal agents to hand them out.

I have spoken to the Clinton-Gore Justice Department, which clearly knows about this bill and tells me it has no comment as yet. The White House and Gore know about this virulent attack on the Fourth Amendment because I and others have written about it, and Congressman Bob Barr, the privacy watchdog, started off the ruckus.

Not a word from Clinton, Gore, Bush, Cheney, or Lieberman. Democratic senator Patrick Leahy is exercised about it; and after I told them, staffers for senators Russell Feingold and Paul Wellstone showed interest. But the rest of the Democrats haven't been heard from yet.

This new black bag job bill was slipped into a Senate methamphetamine bill on November 19, 1999. Bob Barr has had it killed in the House Judiciary Committee, but there will be attempts to sneak it into a House-Senate conference report on one of the big appropriations bills that will be voted on soon. Barr, Leahy, the ACLU, and the invaluable Jim Dempsey of the Center for Democracy and Technology in Washington are watching closely to detect this poisonous virus before it's too late.

But Bush, Gore, and Clinton will remain silent, as they did when the roving wiretaps bill became law—and as they did when the government got permission to use secret evidence in immigration cases. And so will the editorial writers and reporters in the mainstream press. My initial story on the secret searches was picked up mainly by radio stations in various states.

If either Bush or Gore is elected, the degradation of constitutional rights will continue, because when the press is ignorant, so is the populace. As the writ of habeas corpus died in the Senate, Senator Daniel Patrick Moynihan said to me, "Where the hell was the press?" He didn't have to ask where Clinton, Gore, Lieberman, Bush, and Hillary were.

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