by Joel Bleifuss
In These Times magazine, December 24, 2001
The Bush administration has a knack for answering the knock
of opportunity. It has used the war as a pretext to pass another
tax cut for the rich, to increase domestic spying powers for the
CIA, and to put the national-unity squeeze on an already pliant
press. But nowhere is that opportunism more apparent than in the
administration's efforts to expand police powers at the expense
of civil liberties.
On October 26, Bush signed the USA PATRIOT (Provide Appropriate
Tools Required to Intercept and Obstruct Terrorism) Act, which
grants federal agencies expanded surveillance and intelligence'
gathering powers, redefines computer hacking as a terrorist offense
and allows the government to hold immigrant terrorist suspects
indefinitely. The Justice Department has detained more than 1,200
immigrants suspected of being terrorist accomplices. The exact
number and names of the detainees have not been released.
On October 31, Ashcroft issued a decree allowing the Justice
Department to monitor attorney-client conversations of those in
federal detention, thereby doing away with attorney-client privilege.
No court order would be needed; the monitoring would be done at
the discretion of the attorney general.
Meanwhile, some congressmen want to amend the 1878 Posse Comitatus
Act, which prohibits the U.S. military from getting involved in
domestic law enforcement. Sen. John Warner (R-Virginia) proposed
lifting this prohibition to "enable our active duty military
to more fully join other domestic assets in the war against terrorism."
On November 13, declaring an "extraordinary emergency,"
Bush signed an executive order authorizing the establishment of
military tribunals to judge foreigners accused of terrorism. Under
this special new system, non-citizen suspects could be accused
on the basis of secret evidence, not informed of the charges against
them, tried in secret, convicted by a vote of two-thirds of the
jurors and, in the case of capital crimes, executed.
Vice President Dick Cheney explained away the question of
civil liberties, saying terrorists "don't deserve the same
guarantees and safeguards that would be used for an American citizen."
And Ashcroft chimed in with the judgment that terrorists "do
not deserve the protections of the American Constitution."
Apparently, these are tribunals that will try only the guilty.
Civil libertarians are rightly outraged. The ACLU called "on
Congress to exercise its oversight powers before the Bill of Rights
in America is distorted beyond recognition."
Rep. Jerrold Nadler, whose district includes the World Trade
Center site, accused Bush of using the attacks "as an excuse
to destroy our Constitution and the protections of liberty that
we pride ourselves on." He asked, "Will we rise up and
assert that we can fight a war and keep our constitutional traditions
and not junk them in the name of national security."
The administration is betting we will not, and with good reason.
What the administration can do (and get away with) depends on
how vigilantly the news media perform their duties as public watchdogs.
Mainstream media have the power to define the tone of public debate
and set the limits of what is acceptable. Some newspapers, such
as the New York Times, have inveighed against Bush's action. Yet
the television networks have tended to soft-sell Bush's audacious,
dangerous and precedent-setting use of executive orders to circumvent
Congress and the judiciary.
We should remember that neither the Reagan nor Bush I administrations
were averse to violating the Constitution to pursue covert policy
objectives. But to what extent, we may never know.
On November 1, Bush, via executive order, amended the Presidential
Records Act to allow any sitting or former president to veto the
release of presidential papers. Normally those papers would be
released 12 years after the end of a presidential term. Hence,
with a stroke of his pen, Bush protected a host of current administration
officials (along with his father) from any embarrassing Iran-contra
revelations that could have come to light during the 2004 presidential