Things We Lost in the Fire

While the Ruins of the World Trade Center Smoldered, the Bush Administration Launched an Assault on the Constitution

Some 36 demonstrators were prosecuted for a trespassing misdemeanor in November—and 29 are about to go to federal prison, for sentences ranging from three to six months.

Might they be tarred in the future under the Patriot Act as "domestic terrorists"? Bourgeois shrugs off the possibility, noting that the SOAW demos are thoroughly nonviolent. But the amorphous definition— "acts dangerous to human life that are a violation of the criminal laws" that "appear to be intended . . . to influence the policy of a government by intimidation or coercion"—can describe any civil disobedience action in which an overheated cop gets into a tussle with a hepped-up protester.

Meanwhile, since last September, funds and technology have poured from the Justice Department and FBI into local police departments to help them beef up their "red squads"—cops who infiltrate political groups and collect data on their members, even when there's no illegal activity.

It's not lost on protesters who showed up for the Republican convention in Philadelphia in 2000 that the Pennsylvania governor who coordinated the FBI and local and state police to infiltrate, tap, disrupt, and covertly snoop on demonstrators at the time was none other than Tom Ridge, head of the new Homeland Security Department. Under his watch, legitimate protests were broken up, their leaders were arrested, and bail was set as high as $1 million. In the end, 95 percent of the charges against protesters were thrown out.

Ashcroft to Congress: Drop Dead

After nearly a year of unbridled expansion of executive powers, some checks and balances are finally beginning to kick in. In recent weeks, a series of heartening court decisions has slammed the Ashcroft strategy of surveillance overkill and unwarranted secrecy. Ruling late last month that the government could not close deportation hearings against Rabih Haddad, a Muslim community leader in Michigan, the Sixth U.S. Circuit Court of Appeals asserted, "The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door." But, wrote Judge Damon Keith, "when government begins closing doors, it selectively controls information that rightly belongs to the people. Selective information is misinformation."

More surprising, the secret court that oversees the Foreign Intelligence Surveillance Act (FISA), decided whether information gathered for foreign intelligence can be forwarded to criminal prosecutors, rebuked the administration for seeking broader powers under the USA Patriot Act. In an unprecedented public statement, the FISA court said it had documented more than 75 cases of the FBI misleading the court in trying to justify its need for wiretaps and other electronic surveillance. Given this track record, the FISA court concluded that the FBI could not be trusted with looser policies that, it said, "are not reasonably designed" to protect the privacy of law-abiding citizens.

Meanwhile, after a summer recess, Congress, like a creature evolving out of the primordial ooze, is beginning to walk upright, and may soon even develop a spine—if for no other reason than its members being rankled by the arrogance of Ashcroft. Every time legislators have tried to assert the oversight they are paid to exercise, the attorney general has essentially told them to drop dead. In June the committee on the judiciary submitted 50 questions to the attorney general on the implementation of the USA Patriot Act. How many times has the Department of Justice authorized the surveillance of facilities used by American citizens and resident aliens, and what assurances are in place to make sure such orders "are not sought solely on the basis of activities protected by the First Amendment?" goes one typical question. And the typical answer came back last in July: That's classified information.

Congress won't keep pushing—especially not right before an election—without pressure from the public.

Like any muscle, democratic freedoms atrophy if they are not exercised. That's what Sacramento Bee publisher Janis Besler Heaphy wanted to tell graduates at California State University when she was invited to give a commencement address last December. "The Constitution makes it our right to challenge government policies," she said. "Our culture makes it our duty. Raising issues. Asking questions. Debating options." But the students didn't hear her. They drowned her out and drove her from the stage with their patriotic shouting.

"The Year in Terror" by Coco McPherson

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