The government [under the USA Patriot Act] can use [its powers] on people who aren’t suspected of committing a crime. Innocent people can be deprived of any clue that they are being watched and that they may need to defend themselves. —Lincoln Caplan, editor, Legal Affairs (“A Magazine of Yale Law School”), November-December 2002
In covering the highly visible and contentious midterm national elections, the press, in all its manifestations, totally ignored the Bush administration’s ceaseless attacks on the Bill of Rights, orchestrated by Attorney General John Ashcroft. So did the candidates, editorial writers, and commentators.
This silence on the deterioration of the liberties we are fighting to protect gives Ashcroft all the more encouragement to pursue his plans, as reported in the October 21 Legal Times, to prepare “a second round of counterterrorism legislation. . . . Lawmakers could see a draft bill in January, after the new Congress convenes”—with the Republicans in control, and most Democratic leaders silent accomplices of Ashcroft.
Across the country, the 94 United States Attorneys were charged in an October 1 speech by the attorney general to vigorously enforce the USA Patriot Act and others of his sorties against civil liberties. In front of his troops, Ashcroft accused his critics of “capitulating before freedom’s enemies—the terrorists.” These dissenters, he added indignantly, have been subjecting his methods to “disdain and ridicule.”
By contrast, a staunch patriot, by Ashcroft’s definition, is George Pataki. How many New Yorkers know that on September 16, the governor took time from campaigning to announce, by executive order, the start of a new toll-free Statewide Public Security Tips Hot Line that, Pataki assures us, “will enable citizens from throughout the state to report information about suspected terrorist activity.”
This is Pataki’s version of John Ashcroft’s Operation TIPS, which House Majority Leader Dick Armey, a conservative Republican libertarian, struck out of the still-pending bill to create a Department of Homeland Security. Armey insisted that the government should not be encouraging Americans to spy on one another.
Pataki, who has been tone-deaf to civil liberties throughout his terms as governor, has no such compunctions—a point Carl McCall might have mentioned. Because press coverage of this state’s very own Operation Tips has been minimal, I am grateful to Bob Perry, legislative counsel for the New York Civil Liberties Union, for information on the scope of this dangerous Ashcroftean plan to create watch committees, in neighborhoods and elsewhere, that will report their suspicions not only to the state hot line but also to the New York Police Department’s hot line.
Keep in mind that all these tips on “suspicious or unusual activity . . . will be cross-referenced through federal, state and local databases,” says the Pataki press release. There is no indication that false tips will eventually be erased from those multiple, intersecting databases.
In 1984, George Orwell predicted the Ashcrofts and Patakis to come: “There of course was no way of knowing whether you were being watched at any given moment.”
The governor should tell us the definition of “suspected terrorist activity” and “unusual activities.” The senior adviser to the governor on counterterrorism, James K. Kallstrom—of whom I expected better, because he commended my civil liberties concerns some months ago—says:
“We ask that the public use common sense and sound judgment when making reports to the hot line.” Again, what do these terms mean—especially in the continuing climate of fear of “sleeper” terrorists among us? And does Kallstrom believe that everyone in the state adheres to what he may mean by “common sense” and “sound judgment”?
The governor’s press release adds: “If a lead is meaningful and can be corroborated, the information will be given to the Joint Terrorism Task Force for investigation.” A key element in that Joint Terrorism Task Force is the FBI—hardly a model of scrupulous care in investigating leads, as was evident during the decades of COINTELPRO, the FBI’s disgraced program of infiltration and disruption of lawful activities by civil rights and anti-war groups—and in the shotgun investigations it has often conducted since then.
Ashcroft has restored the reckless spirit of COINTELPRO by again giving the FBI the power to conduct investigations under such loose guidelines that the Fourth Amendment might as well be obsolete.
But the Pataki press release—before it says that a lead has to be “meaningful” and “corroborated” to be turned over to the Joint Terrorism Task Force—first declares that all tips through the hot line “will be cross-referenced through federal, state, and local databases.” Even if the leads are not “meaningful” and cannot be “corroborated” sufficiently to be turned over to the task force?
The hot line phone numbers have been in operation since September 17 and “are staffed 24 hours a day, seven days a week by the New York State Police, working in conjunction with the New York State Office of Public Security and the Joint Terrorism Task Force.”
Also, the release says that when giving a description of “a suspicious person, callers should make note of as many physical and behavioral descriptors as possible. If the person is driving a vehicle, callers should try to provide the vehicle’s license plate, year, make, model, size and color.”
What about the color or the “foreign” look of these suspicious persons? Pataki calls the hot line “a powerful new resource” against terrorism. I would suggest that he left out one crucial word in that phrase: “blunderbuss resource.”
The United Federation of Teachers and other unions—”progressive” unions—enthusiastically endorsed Pataki, but I wonder how many of their innocent members may one day be ensnared in the dragnet of the governor’s Statewide Public Security Tips Hot Line. Leaving office, George Washington warned that a government of overwhelming power “is not reason. . . . It is a force like fire, a dangerous servant and a terrible master.”
But, of course, if you haven’t done anything wrong, you have nothing to worry about. Right?