War on the Bill of Rights
by Nat Hentoff
In These Times magazine,
The erosion of sections of the Bill of
Rights quickened when the president signed the USA PATRIOT Act
on October 26, 2001. With Attorney General John Ashcroft insisting
on the crucial need for speed, the House passed the 342-page document
by a vote of 356 to 56, although few had the chance to read it.
Several members later said that parts of the new law seemed unconstitutional,
but in view of the coming elections, they did not want to be attacked
as "unpatriotic" by their opponents. In the Senate,
only one senator, Wisconsin's Russ Feingold, voted against the
In the House, dissenter David Obey of
Wisconsin said bitterly, "Why should we care? It's only the
The Act has radically extended government
electronic surveillance-on and off the Internet-with often reduced
judicial review. For example, FBI agents can enter a home or office
with a court order-while the occupants are not there-and insert
the "Magic Lantern" (also known as the keystroke logger)
into a computer.
It records every stroke, including messages
not ever sent from the computer. On returning covertly, the agents
can download everything that has been recorded. Notice of their
entry can be delayed for 90 days or longer.
Under the PATRIOT Act, with a warrant
from the secret Foreign Intelligence Surveillance Court, the FBI
is empowered to go to libraries and bookstores to secure the lists
of books borrowed or bought by persons under only tenuous suspicion
of links to terrorism. A much lower standard than the Fourth Amendment's
"probable cause" is permitted for these inquiries. And
with a gag rule unprecedented in American history, both the librarian
and the bookstore owner are prohibited from informing anyone,
including the press, that these searches have taken place.
Among the extraordinary unilateral incursions
in the Bill of Rights taken by John Ashcroft: Government agents
can now listen in on conversations between lawyers and their clients
in federal prisons without a prior court order.
And it goes on. The December 20, 2002,
New York Times reported, "The Bush administration is planning
to propose requiring Internet service providers to help build
a centralized system to enable broad monitoring of the Internet
and, potentially, surveillance of its users through the Internet."
Brandon Koerner, a fellow at the New America
Foundation, has pointed out in The Village Voice that the bill
that Congress passed so hastily-and that is now part of the law-"lowers
the legal standards necessary for the FBI to deploy its infamous
Carnivore surveillance system." Without showing-as the Fourth
Amendment requires-probable cause that a crime has been committed
or is about to be committed, the government invades your privacy
The fearful name "Carnivore"
disturbed some folks, and 50 it has been renamed DCS1000. Carnivore,
Koemer notes, is "a computer that the Feds attach to an Internet
service provider. Once in place, it scans email traffic for 'suspicious'
subjects which, in the current climate, could be something as
innocent as a message with the word 'Allah' in the header."
Or maybe: "SAVE THE FOURTH AMENDMENT FROM TYRANTS!"
Carnivore also records other electronic communications.
Ashcroft's Detention Camps
And there is the PATRIOT Act's designation
of two American citizens, so far, as "enemy combatants,"
held in military brigs in this country, without charges and without
access to lawyers, and unable to appear personally in court hearings.
They are being held indefinitely for interrogation about their
possible knowledge of or links to terrorism.
In the case of Yaser Hamdi, taken into
custody in Afghanistan and now in a Virginia navy brig, Federal
District Judge Robert Doumar, a Reagan appointee, has asked the
Justice Department lawyer, "So the Constitution doesn't apply
to Mr. Hamdi?" This treatment of American citizens, Judge
Doumar has said, "appears to be the first in American jurisprudence."
Jonathan Turley, a professor of constitutional
and public-interest law at George Washington University, wrote
in a column in the August 12, 2002, Los Angeles Times: "Attorney
General John Ashcroft's announced desire for camps for U.S. citizens
he deems to be 'enemy combatants' has moved him from merely being
a political embarrassment to being a constitutional menace."
Actually, ever since Ashcroft pushed the
PATRIOT Act through ~ supine Congress, he has subverted more elements
of the Bill of Rights than any attorney general in American history.
Turley reports that Justice Department
aides to General Ashcroft "have indicated that a 'high-level
committee' will recommend which citizens are to be stripped of
their constitutional rights and sent to Ashcroft's new camps....
Of course Ashcroft is not considering camps on the order of the
internment camps used to incarcerate Japanese-American citizens
in World War 11. But he can be credited only with thinking smaller;
we have learned from painful experience that unchecked authority,
once tasted, easily becomes insatiable."
Turley insists that "the proposed
camp plan should trigger immediate congressional hearings and
reconsideration of Ashcroft's fitness for important office. Whereas
al-Qaeda is a threat to the lives of our citizens, Ashcroft has
become a clear and present threat to our liberties." There
has, as yet, been no congressional call for such hearings.
On August 8, 2002, the Wall Street Journal,
which much admires Ashcroft on its editorial pages, reported that
"the Goose Creek, South Carolina, facility that houses [Jose]
Padilla-mostly empty since it was designated in January to hold
foreigners captured in the U.S. and facing military tribunals-now
has a special wing that could be used to jail about twenty U.S.
citizens if the government were to deem them enemy combatants,
a senior administration official said." The Justice Department
has told Turley that it has not denied this story. And space can
be found in military installations for more "enemy combatants."
But once the camps are operating, can
Ashcroft be restrained from detaining-not in these special camps,
but in regular lockups-any American investigated under suspicion
of domestic terrorism under the new, elastic FBI guidelines for
criminal investigations? From page three of these Ashcroft terrorism
FBI guidelines, it's worth noting again that "The nature
of the con' duct engaged in by a [terrorist] enterprise will justify
an inference that the standard [for opening a criminal justice
investigation] is satisfied, even if there are no known statements
by participants that advocate or indicate planning for violence
or other prohibited acts." That conduct can be simply "intimidating"
the government, according to the PATRIOT Act.
On March 18, 2003, The Associated Press
reported that at John Carroll University, in a Cleveland suburb,
Justice Antonin Scalia said, "Most of the rights you enjoy
go way beyond what the Constitution requires" because "the
Constitution just sets minimums." Accordingly, in wartime,
Scalia emphasized, "the protections will be ratcheted down
to the constitutional minimum."
Most of the radical revisions of the Constitution
that I and others have been writing about will ultimately be ruled
on by the Supreme Court. Scalia indicates he will come down on
the side of Bush and Ashcroft. A few days after the terrorist
attacks on the World Trade Center and the Pentagon, Justice Sandra
Day O'Connor said that as a result, we are "likely to experience
more restrictions on our personal freedom than has ever been the
case in our country."
In his book All the Laws But One: Civil
Liberties in Wartime (Alfred A. Knopf, 1998), William Rehnquist,
the chief justice of the United States, who will be presiding
over the constitutionality of the Bush-Ashcroft assaults on the
Constitution, wrote, "In time of war, presidents may act
in ways that push their legal authority to its outer limits, if
Reacting to Rehnquist's deference to the
executive branch in previous wars, Adam Cohen, legal affairs writer
for the New York Times, wrote: "The people whose liberties
are taken away are virtually invisible" in the pages of Rehnquist's
Meanwhile, in an invaluable new report
by the Lawyers Committee for Human Rights, Imbalance of Powers:
How Changes to U.S. Law and Policy Since 9/11 Erode Human Rights
and Civil Liberties (March 2003), a section begins: "A mantle
of secrecy continues to envelop the executive branch largely with
the acquiescence of Congress and the courts. [This] makes effective
oversight impossible, upsetting the constitutional system of checks
So where is the oversight going to come
from? If at all, first from the people pressuring Congress-provided
enough of us know what is happening to our rights and liberties.
And that requires, as James Madison said, a vigorous press, because
the press has been "the beneficent source to which the United
States owes much of the light which conducted [us] to the ranks
of a free and independent nation."
But the media, with few exceptions, are
failing to report consistently, and in depth, precisely how Bush
and Ashcroft are undermining our fundamental individual liberties.
For example, the Justice Department had
kept secret from Congress the Domestic Security Enhancement Act,
the proposed sequel to the PATRIOT Act. A week before an anonymous
member of Ashcroft's staff leaked PATRIOT Act 11, a representative
of the Justice Department even lied to the Senate Judiciary Committee
about its very existence.
A few sections in that chilling draft
were briefly covered in some of the media. But these invasions
of the Constitution were only a one or two-day story in nearly
all of the media.
How many Americans know that if the bill
is passed (and Bush certainly won't veto it), they can be stripped
of their citizenship if charged with giving "material support"
to a group designated by the government as "terrorist"?
Sending a check for the outfit's lawful activities-without knowing
why it landed on Ashcroft's list-could make you a person without
a country and put you behind bars here indefinitely.
Justice Denied at its Source
Three days before the first anniversary
of September 11, the Daily Journal Gazette of Fort Wayne, Indiana,
published an indictment of Ashcroft and the Bush administration
in an editorial, "Attacks on Liberty." It was the paper's
first full-page editorial in nearly 20 years. The Journal Gazette
In the name of national security, President
Bush, Attorney General John Ashcroft, and even Congress have pulled
strand after strand out of the constitutional fabric that distinguishes
the United States from other nations....
Actions taken over the past year are
eerily reminiscent of tyranny portrayed in the most nightmarish
works of fiction. The power to demand reading lists from libraries
could have been drawn from the pages of Ray Bradbury's Fahrenheit
451.... The sudden suspension of due process for immigrants rounded
up into jails is familiar to readers of Sinclair Lewis' It Can't
Among the quotations from distinguished
Americans in the editorial was one of my favorites-Louis Brandeis'
"The greatest dangers to liberty lurk in insidious encroachment
by men of zeal, well-meaning but without understanding."
The changes in the air are not only far
from slight, but they are ominous in view of what another current
Supreme Court justice, Anthony Kennedy, has warned: "The
Constitution needs renewal and understanding each generation,
or else it's not going to last."
But the Constitution cannot be continually
renewed unless enough Americans understand its crucial guarantees
of personal liberties against an executive branch that eagerly
and righteously keeps assuming powers that the Constitution mandates
be shared with Congress and the judiciary.
During a radio interview in Alaska, on
February 11, 2003, Rep. Don Young, a plainspoken conservative
Republican, said to a caller from Hooper Bay, Alaska, "The
events of September 11, as horrendous and horrible as they were,
have had an even more horrendous effect-in my opinion and I think
in the opinion of a lot of Americans-on our rights, through such
of the legislation that has been passed as the PATRIOT Act. The
worst act we ever passed."
"Did you vote for it?" the caller
"Everybody voted for it," Don
Young said, "but it was stupid. It was what you call 'emotional
voting.' We didn't follow it through, we didn't study it. I think
you're going to see-what I call-improvements, changes.... I say
this very strongly. American citizens have constitutional rights,
and we have to follow them."
On the National Day of Prayer, May 1,
2003, Attorney General John Ashcroft declared in Washington: "It
is faith and prayer that are the sources of this nation's strength."
In view of Ashcroft's systematic invasions
of our liberties, it is understandable that he missed the quintessential
source of this nation's strength-the Bill of Rights-as Don Young
of Alaska and increasing millions of Americans know, and are insistent
Nat Hentoff is a columnist for The Village
Voice and the Washington Times. This essay was adapted from The
War on the Bill of Rights and the Gathering Resistance (2003 Seven