The War on the Bill of Rights

The rush to push aside the Bill of Rights began on September 13, two days after the terrorist attacks. That night, the Senate swiftly attached to a previously written appropriations bill an amendment to make it much easier for the government to wiretap computers without having to go to court to get multiple search warrants. The Internet has been enlisted against the Evil Empire, and your privacy is the first casualty.

Passed by voice vote, with only brief debate, this incursion into the Fourth Amendment was heralded by a sponsoring senator as “the first legislative strike against terrorists.”

In this immediate aftermath, Attorney General John Ashcroft has appeared often on television to assure the public that to protect its security, the government will demand new legislation for “roving wiretaps.” Rather than target a suspect’s primary phone, the judicial warrant would extend the wiretap to any and all telephones—regular, cell, or any other—that he or she used. If the suspect talks on a relative’s phone, or a phone in an office unrelated to his alleged terrorist activities, or a phone in your home, the owners of those phones would also become part of the investigative record of purported terrorism.

The public was not told by Ashcroft that roving wiretaps had already become law in 1998, during the Clinton administration. The Bush team wants credit for this strike against Osama bin Laden. Only Georgia congressman Bob Barr, a fierce conservative advocate of privacy, tried to stop the 1998 roving-wiretaps law, and the press paid hardly any attention.

What is new is Ashcroft’s pressing for a radical extension of present government wiretapping powers. The law now says that a warrant for a wiretap is valid only in the jurisdiction in which it is issued. But the Bush administration demands a national wiretap warrant that will save its agents from repeated trips to court.

The president and his enforcement team correctly anticipate that the public will offer little opposition to the evisceration of its Fourth Amendment rights—and other Bill of Rights “guarantees” of protection of individual liberties against the government.

A CBS-New York Times survey released on Sunday, September 16, showed that 74 percent of Americans thought they would have to give up some of their personal freedoms to get Osama bin Laden “dead or alive,” as George W. Bush put it, recalling wanted posters in the Old West.

The explanation for this eagerness to relinquish our supposedly cherished freedoms is not only the rage and fear at the shocking numbers of civilians murdered on our own land by foreign fanatics for the first time in our history.

The more frightening reason why the government can have confidence in our support is that most Americans have only the dimmest notion of what their constitutional freedoms are—and what it took to get them. So there is little concern that they and other Americans can be caught in dragnets of suspicion by a government that has suspended much of the Bill of Rights.

This willingness to surrender what we’re supposed to be fighting for is a recurring part of our history. During the Civil War, Abraham Lincoln imprisoned newspaper editors and other dissenters against his policies. In addition, he suspended the oldest right of English-speaking peoples, habeas corpus. “The Constitution,” Lincoln explained, “is not a suicide pact.”

How many Americans, right now, would disagree with that conclusion?

While the media has been focusing on Osama bin Laden, the president, Secretary of State Colin Powell, and Secretary of Defense Donald Rumsfeld have been pledging to root out terrorism in all countries harboring terrorists, not only Afghanistan.

When Colin Powell named the countries implicated in the murderous conspiracy soon after the catastrophic attacks on September 11, it was not noted in the press that the harboring nations had already been cited as official “state sponsors of terrorism” in a report last April by the State Department’s Office of the Coordinator for Counterterrorism. That report was largely ignored in the media.

The deadly seven are Iran, Iraq, Syria, Libya, Cuba, North Korea, and Sudan. The State Department counterterrorism report emphasizes that Sudan is a leading harborer of international terrorists—but that nation has been overlooked in the recent media furor about this malevolent network.

From the report: “Sudan . . . continued to be used as a safe haven by members of various groups, including associates of Osama bin Laden’s al-Qaida [“the Base”] organization . . . Egyptian Islamic Jihad, the Palestine Islamic Jihad, and Hamas. Most groups used Sudan primarily as a secure base for assisting compatriots elsewhere.” (Emphasis added.)

Osama bin Laden, the State Department continues, has a “working agreement” with the government of Sudan.

Are we going to bomb or invade Sudan?

This will indeed be a war without a clear end, because we are dealing with an extensive network of terrorists. Bin Laden’s organization, the State Department reports, “has a worldwide reach” through its connections to this network. Even if Bin Laden is taken, dead or alive, there will remain hidden cells, hidden “sleepers” around the world—some of them right here.

Civil libertarians—and there aren’t many—have to be careful not to believe that the huge popular support for the Bush war effort will make significant resistance nearly impossible. But opposition to a coup d’état against the Bill of Rights is our only alternative to yielding to the beginnings of a police state for an indefinite period.

There is still time to save the freedoms our government says we’re fighting for. And that requires doing—and planning—with the confidence that most Americans will applaud.

The Alien and Sedition Acts of 1798, which nearly destroyed the First Amendment, ignited enough opposition to elect Thomas Jefferson in 1800, and he released all those imprisoned by that law. The “Red Scare” of 1919 and the early 1920s—with its mass arrests of “subversives” in 33 cities, without a semblance of due process—was eventually seen by the citizenry as a disgrace. And in the 1950s, Joe McCarthy was finally overcome.

If we do not spread the word of this bipartisan attack on the Bill of Rights—and insist on our First Amendment rights to protest—we will become accomplices in this war against the Constitution. American flags are everywhere. I bought one at a vigil for the dead at Union Square. But what do those flags stand for?

In the September 17 Daily News, Richard Sisk did the kind of reporting that will continually be needed to awaken enough of the populace to rescue the Constitution.

Sisk noted that New York is now the headquarters for the multi-agency Joint Terrorism Task Force. He quoted Justice Department spokeswoman Mindy Tucker as saying, as Sisk summarized it, that “U.S. Attorney Mary Jo White, top federal prosecutor for the Southern District of New York, has been given extraordinary powers to proceed in secrecy against anyone implicated ‘in the entire attack against the four airliners.’ ” (Emphasis added.)

What does “implicated” mean? Reasonable suspicion? Probable cause? And how will we know whether basic due process has been afforded those “implicated” when, as Sisk continued, the Justice Department says, “Search warrants and records will be sealed. Law enforcement also no longer will disclose when arrests are made or when material witnesses are taken into custody.”

And we’re supposed to be telling China how to reform its justice system, which functions in secrecy as it crunches human rights?

In the September 24 National Law Journal, David C. Vladeck, director of the Public Citizen Litigation Group, says that the public demand for security will support “virtually everything the government does in terms of intelligence gathering and assessment, immigration, and telecommunications.”

He could have added: the rapid increase in checkpoints in public places; the profiling of suspects by how they look and dress; and the eventual, sooner rather than later, creation of a national ID card. That card, with its relentless computer chip, will enable the authorities to keep pervasive track of what we do and where we go.

“These are very sobering times,” Vladeck says, “and I think the temperament of the country will tolerate the kind of measures we might at one point have thought intolerable.”

It’s up to us as to whether he’s right.