John Ashcroft v. the Constitution


We’re going to protect and honor the Constitution, and I don’t have the authority to set it aside. If I had the authority to set it aside, this would be a dangerous government, and I wouldn’t respect it. We’ll not be driven to abandon our freedoms by those who would seek to destroy them. —Attorney General John Ashcroft, Legal Times, October 22

It is a good bill . . . that allows us to preserve our security . . . but also protect our liberties. —Patrick Leahy, Democrat, chairman of the Senate Judiciary Committee, National Public Radio, October 26

George W. Bush, with great satisfaction, signed the USA PATRIOT Act on Friday, October 26, after both the House and Senate overwhelmingly approved most of what John Ashcroft had urgently sent them, demanding that they move immediately to show the nation and the terrorists that we would surely prevail in this war for freedom.

A few hours later, presidential press secretary Ari Fleischer held his regular televised press conference, attended by Washington’s elite cadre of journalists, who asked no substantial questions about the new antiterrorism legislation. The subject was disposed of quickly. On the following Sunday morning’s commentary and analysis programs, there were also no probing questions about what the bristling new law was doing to the Constitution. Not even Tim Russert, the most careful researcher among the Sunday hosts, paid it much mind.

And in the weeks since, in most newspapers, and as usual, on both broadcast and cable television as well as radio, Americans who cared at all were not able to find news of how a good many of their fundamental liberties had been diminished.

As George Melloan had said in the October 23 Wall Street Journal, “one of the most insidious things about terrorist attacks” is that “they engender an ‘anything goes’ mentality within the nation under attack. . . . Yet as both President Bush and Mr. Ashcroft have observed, if the attacks force a general curtailment of civil liberties, the terrorists have won.”

Well, we’ve begun to lose that part of the battle.

For the following guide to what’s actually in the USA PATRIOT Act, I am indebted to the ACLU’s extensively detailed fact sheets—which were sent to Congress and the press as the bill was being steamrollered through—along with the analyses by the Center for Democracy and Technology in Washington. Also included are interviews with staff members of both organizations and workers at other civil liberties bunkers.

To begin with, because of the limited technology in his time, George Orwell could not have conceived of how pervasively we are now going to be surveilled.

I have differed with the ACLU on some issues, but the work by its persistent Washington staff was extraordinarily comprehensive. Congress, however, was panicked; and the press, by and large, works hard to understand anthrax—but not the Constitution.

I saw hardly any mention, by the way, of the fact that Congress was in such a rush to yield to most of John Ashcroft’s demands that although there were some differences between the House and Senate bills, the time-honored practice of holding a conference between the two bodies to resolve the disagreements was abandoned. Instead, behind closed doors, the leaders worked out a “preconference” arrangement.

Therefore, when this law is challenged in the courts—by the ACLU and others—the judges, without a formal conference report in front of them, will not have a clear understanding of the legislative intent of this law. Maybe that’s what our leaders wanted.

To begin with, because of the limited technology in his time, George Orwell could not have conceived of how pervasively we are now going to be surveilled. St. Petersburg Times syndicated columnist Robyn Blumner has noted that we are already changing from being citizens to being dossiers. But you ain’t seen nothing yet.

The USA PATRIOT Act has markedly loosened the standards for government electronic surveillance—of our computers, e-mail, Internet searches, and telephones. This means all kinds of telephones, including, for example, not only the pay phones that the suspect may be using, but any pay phones in the area of his or her travels. This vast expansion of eavesdropping is due to the law’s extension of roving wiretaps, and to the one-stop national warrant that will cover a suspect anywhere he or she goes. That wouldn’t have surprised Orwell.

This peripatetic surveillance applies not only to terrorist investigations, but under some provisions of the law, to routine criminal investigations.

As the ACLU emphasizes, this law “limits judicial oversight of electronic surveillance by: (i) subjecting private Internet communications to a minimal standard of [judicial] review; (ii) permitting law enforcement to obtain what would be the equivalent of a ‘blank warrant’ in the physical world; (iii) authorizing scattershot intelligence wiretap orders that need not specify the place to be searched or require that only the target’s conversations be eavesdropped on; and (iv) allowing the FBI to use its ‘intelligence’ authority to circumvent the judicial review of the probable cause requirement of the Fourth Amendment.” (Probable cause means demonstrating that a crime has occurred, is occurring, or will occur.)

So say goodbye to the Fourth Amendment:

The right of the people to be secure in their persons, household papers, and effects, against unreasonable searches and seizures, will not be violated; and no warrants will issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Keep in mind that the new law’s definition of “domestic terrorism” is so broad, as we shall see in future columns, that entirely innocent people can be swept into this surveillance dragnet. You are not immune.

As law professor and privacy expert Jeffrey Rosen points out in the October 15 New Republic, “If [unbeknownst to you] your colleague is a target of [the already in-place] Foreign Intelligence Surveillance Act Investigation [with its very low privacy standards], the government could tap all your [own] communications on a shared phone, work computer, or public library terminal.”

Furthermore, all this vast “intelligence” data can now be shared with the CIA, which is again allowed—despite its charter forbidding it to engage in internal security functions—to spy again on Americans in this country, and without a court order. People of a certain age may remember when the CIA did spy here on law-abiding dissenters, mostly on the left, in total contempt of the Constitution.

Next week: The breaking in of your doors when you’re not there for FBI secret searches (“black bag jobs”) under the authority of the USA PATRIOT Act.