Creeping Authoritarianism

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 election.

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