Crossing Swords With General Ashcroft


The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive.Thomas Jefferson, letter to Abigail Adams, February 22, 1787

People are being unlawfully arrested, thrown into jail, denied the right to employ counsel, or to communicate with their friends, or even to inform their families of their whereabouts, subjected to unlawful search, threatened, intimidated. . . . The most sacred constitutional rights guaranteed to every American citizen are violated in the name of democracy. —Robert M. La Follette, senator from Wisconsin, June 1917

I’ve been asked whether the growing number of Bill of Rights defense committees defying the Bush-Ashcroft-Rumsfeld attacks on our Constitutional liberties aren’t really only symbolic. What can town and city councils across the country actually do to rein in the FBI, the CIA, and all the other intelligence agencies now interconnected through the homeland security act?

A useful way to answer this pivotal question was reported on November 26 in the Eugene, Oregon, Register-Guard: “Eugene city councilors gave in to a stampede of constituents Monday night, surprising even themselves by voting unanimously at an impassioned meeting to make Eugene the 15th city in the United States and the first in Oregon to formally seek reform or repeal of the USA Patriot Act.”

Said City Councilor Bonny Bettman: “We shouldn’t stand by silently as those rights and freedoms are eroded. Our rights and freedoms really help distinguish us from our enemies.”

This is Section 1 of A Resolution of the City of Eugene Defending the Bill of Rights and Civil Liberties: “We ask that the U.S. Attorney’s Office, the Office of the Federal Bureau of Investigation, the Oregon State Police, and any other Federal [and] State law enforcement officials and local law enforcement . . . report to the Eugene City Council and Human Rights Commission monthly and publicly the extent and manner in which they have acted under the USA Patriot Act and new Executive Orders, including but not limited to disclosing:

“The names of any detainees held in the area or any Eugene residents detained here or elsewhere, the circumstances that led to the detention. The charges, if any, lodged against any detainees. The name of counsel, if any, representing each detainee.

“The number of search warrants that have been executed in the City of Eugene—without notice to the subject of the warrant—pursuant to section 213 of the USA Patriot Act. The extent of electronic surveillance carried out in the City of Eugene under powers granted in the USA Patriot Act.

“The extent to which federal authorities are monitoring political meetings, religious gatherings, or other such activities within the City of Eugene. The number of times education records have been obtained from public schools and institutions of higher learning in the City of Eugene under section 507 of the USA Patriot Act.

“The number of times library records have been obtained from libraries under Section 215 of the USA Patriot Act. The number of times that records of the books purchased by store patrons from bookstores have been obtained in the City of Eugene under Section 215 of the USA Patriot Act; and subpoenas issued to Eugene citizens . . . without a court’s approval or knowledge.”

Resolution No. 4743 goes on: “We resolve that, to the greatest extent legally possible, no city resources, particularly administrative or law enforcement funds, will be used for unconstitutional activities conducted under the USA Patriot Act or recent Executive Orders which permit activities listed above.”

As Thomas Jefferson said in a December 26, 1820, letter to the Marquis de Lafayette: “The disease of liberty is catching.”

What the Eugene city council and the other Bill of Rights Defense Committees are asking for is also part of a national lawsuit under the Freedom of Information Act, filed in October by the American Civil Liberties Union, the Electronic Privacy Information Center, the American Booksellers Foundation for Free Expression, and the Freedom to Read Foundation. A federal district judge in Washington, D.C., has ordered Attorney General John Ashcroft to supply the information those four organizations have requested by January 15—or the government will have to explain why it’s not revealing how it is implementing the USA Patriot Act and the subsequent executive orders (Eugene’s city council and others around the country are also waiting to find out).

Meanwhile, in a front-page story (Washington Post, December 1), Charles Lane explores how far-reaching the Bush administration’s plans are to undermine the Bill of Rights more radically than during any other presidency in our history:

“The Bush administration is developing a parallel legal system in which terrorism suspects—U.S. citizens and noncitizens alike—may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.”

Lane quotes Kate Martin, director of the Center for National Security Studies in Washington: “They are trying to embed in law a vast extension of executive authority with no judicial oversight in the name of national security.”

There are already two American citizens, Jose Padilla and Yaser Esam Hamdi, held as “enemy combatants”—incommunicado, without charges, without access to their lawyers, in military brigs on American soil. Charles Lane reports that Solicitor General Theodore Olson—a key administration strategist in creating this parallel legal system—has argued in a recent legal brief “that the detentions of people such as Hamdi or Padilla” do not require that “the executive branch spell out its criteria for determining who qualifies as an enemy combatant.” The president decides who loses his or her constitutional rights. Trust in him. He is the parallel law.

“Experience hath shewn,” said Thomas Jefferson, “that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

What is happening to us is not being done slowly. But why are New Yorkers being so slow in forming a Bill of Rights Defense Committee? Next week: The alarming case of Yaser Esam Hamdi, who has been isolated from the Constitution.