Liberal Laryngitis

by Nat Hentoff

The Progressive magazine, February 2002

It was only a one-day story in the relatively few newspapers that carried it, and there was scant mention on television or radio, but the Attorney General has revived the FBI's Cointelpro (Counterintelligence Program)-the most disgraced operation in the Bureau's scrofulous history.

Relying on the polls abundantly supporting his and the President's war on the Bill of Rights-and on the short historical memories of the public and the news media-John Ashcroft brushes off any concerns about a modern-day version of Cointelpro or the FBI's secret searches (black bag jobs) in the USA Patriot Act by saying he will do anything necessary within the bounds of the Constitution, as he interprets it, to protect us from the hidden enemy.

From 1957 to 1971, the FBI, under Cointelpro, surveilled, infiltrated, and disrupted religious and political organizations during the civil rights, anti-war, and human rights campaigns. Agents even "worshipped" covertly in churches deemed suspicious.

Finally, Senator Frank Church, Democrat of Idaho, and his Select Senate Committee on Intelligence Activities, after investigating Cointelpro's pervasive contempt for constitutional rights, concluded that "the American people need to be reassured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers threats to the established order."

We have been deceived again.

In Atlanta recently, at a meeting of black leaders to discuss the unfinished civil rights agenda, Jesse Jackson said of the Ashcroft-Bush agenda, "Our civil rights and civil liberties have now been seized. When Ashcroft and the CIA and the FBI and Homeland Security and the IRS can work together, look out, Cointelpro. Look out, Red Squad."

Later, there was another meeting of civil rights leaders in Washington convened by Laura Murphy, head of the ACLU's Washington office. (Ever since Ashcroft came into reckless power, the ACLU has been invaluable. Under its new executive director, Anthony Romero, the ACLU has been proactive as well as reactive. It was Romero's idea to send letters to the consulates of the ten countries with the largest number of their citizens "detained"-i.e., imprisoned- by Ashcroft and to offer legal assistance.) At that Washington meeting, some participants-including the syndicated radio talk show host and former NAACP board member Joe Madison-insisted that civil rights organizations have not been publicly critical enough of the Government's shredding of the Constitution. Al Sharpton said some of his colleagues seemed to be suffering from laryngitis. That is now changing.

The silence or acquiescence of many Jewish organizations has also been disappointing. "The White House strategy for fighting terrorism is driving a wedge between leading Jewish champions of civil liberties and many of the Jewish organizations that have been their traditional allies," wrote Ami Eden in the Jewish weekly Forward.

One example is the Anti-Defamation League. I've known its director, Abe Foxman, for many years, but he does not return my call on this matter. However, he told The New York Times that he commends Ashcroft and Bush. "We have been out there very clearly and very directly supportive of this new legislation, and giving law enforcement power to be able to prevent criminal acts," Foxman said.

It was the FBI under Cointelpro that jubilantly committed criminal acts. And as the Third Circuit Court of Appeals told Ashcroft on December 19, his act of holding thousands of immigrants facing deportation in "detention" indefinitely without hearings is unconstitutional. That ruling affects long-term detainees and is not based on Ashcroft's post-September 11 mass jailing of immigrants on unproved links to terrorism, but it sets a precedent for future legal challenges by the ACLU and other civil liberties groups.

While the Anti-Defamation League, the American Jewish Congress, the American Jewish Committee, and other Jewish organizations fear antagonizing Bush and Ashcroft, the leaders of Reform Judaism have spoken out strongly. Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, and Rabbi Eric Yoffie, president of the Union of American Hebrew Congregations, sent a letter to Ashcroft decrying his attack on the Sixth Amendment right to counsel. They told Ashcroft that his directive allowing federal law enforcement officials to eavesdrop on conversations between "detained" individuals and their lawyers weakens "the basic right to competent legal counsel altogether." Now, say the rabbis, the detainees' lawyers "must constantly fear undermining their cases by merely speaking with individuals they are sworn to represent."

And as for the secret affidavit exposed by The Washington Post that orders "detainees" to be held on often-minor violations without any connection to September 11, the rabbis are clear: "This legal document turns the traditional presumptions of our criminal justice system on their head, essentially arguing that judges should deny bail to individuals based not on the evidence before them but rather on the lack of evidence-on the promise of a prosecutor that the individual in question fits into a 'mosaic.' That legal argument makes it nearly impossible for a defense attorney to prevent her client from being detained." (Emphasis added.)

As of this writing, there has been no answer from Ashcroft, a graduate of the University of Chicago Law School, who should sue to get his tuition back.

Nat Hentoff is a columnist for the Village Voice, NEA Newspapers Syndicate, Legal Times, and Editor and Publisher. His most recent hooks are "Living the Bill of Rights" (University of California, 1999) and "The Nat Hentoff Reader" (Da Capo Press, 2001).

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