Congress has overwhelmingly passed, and the president has enthusiastically signed, an anti-terrorism bill that, as the ACLU says, gives “enormous, unwarranted power to the executive branch unchecked by meaningful judicial review.” Moreover, “most of the new powers could be used against American citizens in counterterrorism investigations and in routine criminal investigations completely unrelated to terrorism.” (Emphasis added.) Also likely to be subject to this law: “those whose First Amendment activities are deemed to be threats to national security by the attorney general.”
That many details of this new law are in contempt of the Bill of Rights is unknown to most Americans because, with few exceptions, the press—particularly its television and radio divisions—has not been paying enough attention. Even in the usually dependable New Yorker, Jeffrey Toobin blithely writes that these changes in the law “do not represent a wholesale retreat from civil liberties.”
To understand how this subversion of the Constitution took place, it’s first necessary to explore one of the most undemocratic breakdowns in the history of our legislative process. Attorney General John Ashcroft had pressed for passage of his anti-terrorism legislation within a week. But on the House Judiciary Committee, an unusual bipartisan coalition—Barney Frank and Maxine Waters in collaboration with Bob Barr and Majority Leader Dick Armey—put some elements of the Bill of Rights back in the bill. And in the Senate, Judiciary Committee chairman Patrick Leahy at first resisted the intense pressure from Ashcroft and the White House to ram the bill through. Leahy later went with the crowd.
By a 36-to-0 vote, the House Judiciary Committee did pass a somewhat improved version of the bill; but late at night, behind closed doors, House Speaker Dennis Hastert, other Republican leaders, and operatives from the White House scuttled that legislation and crafted a new bill.
On October 12, right after that coup, the House voted, 337 to 79, for a 175-page bill that most of its members hadn’t even had time to read. Democratic congressman John Conyers said on C-Span that only two copies of the bill were available to his side of the aisle.
Congressman David Obey of Wisconsin reacted mordantly to what he described as “a backroom quick fix” before the vote. “Why should we care?” he said. “It’s only the Constitution.”
Barney Frank said it plainly: “This was the least democratic process for debating questions fundamental to democracy I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process, comes before us immune from amendment.”
Another sneak attack on the democratic process had put a quick fix on the Senate Judiciary Committee’s anti-terrorism bill. Present at that closed-door session were Senate leaders and emissaries from the administration.
Swiftly, the Senate passed that much harsher legislation by a vote of 96 to 1 on October 11. Again, most members of the “world’s greatest deliberative body” did not have time to read the entire 243-page bill.
The only senator with the honesty and courage to vote against this attack on due process, the Fourth and First Amendments, and others of “our cherished liberties,” as the attorney general had called them, was Russell Feingold of Wisconsin. On the floor of the Senate, Feingold had tried to rouse his colleagues to repel this attack on the Constitution:
“It is crucial that civil liberties in this country be preserved. Otherwise, I’m afraid terror will win this battle without firing a shot.”
There were some differences between the House and Senate bills. The hope of the ACLU and other civil libertarians was that in the traditional conference between the two legislative bodies to negotiate an agreement, at least some of the excesses of Ashcroft’s proposals could be removed.
But despite the importance of this legislation to all of us, there was no conference. Leaders of the House and Senate papered over the differences in “a pre-conference,” also held behind closed doors.
As a result, when sections of this new law are challenged in court, the judges—not having a formal conference report—will not know the clear intent of this legislation. So the judiciary, too, has been rushed past in this war against terrorism that has also terrorized our Bill of Rights.
The full name of this raid on our fundamental liberties is “the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” It is also known, without irony, as the “USA PATRIOT Act.”
Among those voting against the bill in the House were Barney Frank, John Conyers, David Bonior, Barbara Lee, Cynthia McKinney, John Dingell, Jesse Jackson Jr., Melvin Watt, Maxine Waters, and I am pleased to add, as a Villager, my congressman, Jerrold Nadler. Charlie Rangel and Chris Shays were among those voting for the bill.
For me, the most disappointing surprise in the Senate tally was the Paul Wellstone vote. He is one of the few authentic liberals left in Congress. As reported on National Public Radio, Wellstone, while troubled by the bill, felt reassured because of its “sunset” provision—the law will be reviewed by Congress in four years to see if it went too far.
This “sunset” is illusory. In the long-term war against terrorism and its largely invisible soldiers, some of them among us, can you imagine legislators tempering this assault on the Constitution four years after it overwhelmingly passed the bill? They want to keep being reelected.
In taking this dodge, Wellstone went on to say to his colleagues fearful of having their patriotism questioned: “It is critically important that each and every one, every senator and representative, monitor the use of new authorities provided to the law enforcement agents to conduct surveillance. We’re going to have to monitor this very closely.” I do not think there was any applause.
Russell Feingold, left alone, said that the new law “goes into a lot of areas that have nothing to do with terrorism and have a lot to do with the government and the FBI having a wish list of things they want to do, whether it be getting into people’s computer use,” medical records, or other areas not related to terrorism. Next week: what some of these dangerous areas are.
“Coming Soon: A National Wiretap Warrant” by Nat Hentoff
“The New McCarthyism: Liberty Is a Fragile Thing” by Nat Hentoff
“Technology and Its Discontents: Cyber-libertarians, Technologists, and Congress Wrangle Over Electronic Privacy Issues During Wartime” by Brendan I. Koerner