Nat Hentoff
Red Alert for Bill of Rights!
Justice Department vs. Democracy
March 7th, 2003 7:00 PM

Charles Lewis, Center for Public Integrity: the Paul Revere of our time
(photo: Karen Ruckman)
The Justice Department . . . seems to be running amok. . . . This agency right now is the biggest threat to personal liberty in the country. —Republican conservative Dick Armey, former House majority leader, New Republic, October 21, 2002

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This nation . . . has no right to expect that it always will have wise and humane rulers, sincerely attached to the principles of the Constitution. . . . [If] the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. —United States Supreme Court, Ex Parte Milligan, 1866, declaring Abraham Lincoln's suspension of habeas corpus and other abuses of the Bill of Rights unconstitutional

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We may never know the name of the patriot who leaked John Ashcroft's draft of a sequel to the USA Patriot Act to Charles Lewis, head of the Center for Public Integrity. Lewis put the 86 pages on his web site (www.publicintegrity.org) on February 7, and that night Bill Moyers interviewed Lewis on his PBS television program, Now. This broke the story of the most radical government plan in our history to remove from Americans their liberties under the Bill of Rights.

As The Washington Post warned in a February 12 editorial, this proposed law—prepared in secret for months while the Justice Department told Congress it had no such legislation in mind—gives the Bush administration "more power unilaterally to exempt people from the protections of the justice system and place them in a kind of alternative legal world." For more on the liberties that may be lost—through secret arrests, stripping Americans of citizenship, dragnet collection of DNA—see last week's column, "Ashcroft Out of Control."

On Bill Moyers's program, Charles Lewis said it took "the most incredible kind of courage" for a member of the Justice Department to have leaked this draft. "There's gonna be a witch-hunt," Lewis predicted. "[If found, the leaker] could very likely not only lose their job, but . . . be ruined professionally. [And I] have an incredible respect for anyone who does that."

Called the Domestic Security Enhancement Act of 2003, the legislation was most likely intended to be sprung on Congress and the rest of us once the war on Iraq began. As Charles Levendosky, editorial page editor of the Casper, Wyoming, Star-Tribune—a ceaselessly vigilant watcher of the Justice Department—said in his syndicated column:

"The DSEA isn't a working paper. It's a complete proposal for legislation. One cannot escape the ramifications. The thoroughness of DSEA is meant to discourage congressional changes, deletions or amendments. . . . It attacks the fundamental framework of our democracy by removing the checks and balances that hold it together and make it work."

In addition to the judiciary and Congress, the other check the Framers relied on to stop uncontrolled government power was what used to be called the Fourth Estate. That's why the First Amendment guarantees "Congress shall make no law . . . abridging the . . . freedom . . . of the press."

But most of the media treated this unprecedented revision of the Constitution as a one- or two-day story, and there was scant mention of it on television. Interestingly, the largest response soon after Bill Moyers's program was from 3581 radio stations. And Moyers's Web site got more than 200,000 hits after the February 7 interview with Charles Lewis.

But as happened with The Washington Post's front-page story on the torture of prisoners in CIA interrogation at our military bases overseas—and the Los Angeles Times' detailed report on the CIA's targeted killings—there has been hardly any follow-up in newspapers or on broadcast and cable television.

Aldous Huxley once wrote of our "almost infinite appetite for distraction," and that attention deficit has increasingly characterized the effect on the press of the 24-hour news-cycle race. I wonder what the job qualifications are these days for assignment editors.

If any member of the press is interested, the American Civil Liberties Union has prepared a 19-page, single-spaced, section-by-section analysis of the myriad constitutional violations in the Domestic Security Enhancement Act of 2003. The ACLU released a similar, invaluable dissection of the first USA Patriot Act, but very little of that appeared in the media. And to this day, not many Americans know what's in that omnivorous law—let alone how it's being implemented.

The new ACLU analysis of USA Patriot Act II was written by legislative counsel Timothy Edgar.

In his initial summary, Edgar notes that this bill, if signed into law by the eager president, would, among other consequences, "threaten public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals." Have you seen that anywhere in the media?

Also, the law would "allow for the sampling and cataloguing of innocent Americans' genetic information without court order and without consent." And "permit, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement."

And, although Operation TIPS has been canceled—thanks to Dick Armey when he was majority leader of the House—the Justice Department doesn't give up easily. This new bill, the ACLU points out, would provide "an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft's 'Operation TIPS' by granting blanket immunity to businesses that phone in false terrorism tips, even if their actions are taken with reckless disregard for the truth."

For those who remember the stunningly illegal orders given to government officials by Richard Nixon, USA Patriot Act II will "shelter federal agents engaged in illegal surveillance—without a court order—from criminal prosecution if they are following orders of High Executive Branch officials." Trust the White House!

In 1771, Sam Adams wrote in the Boston Gazette: "Power makes men wanton . . . it intoxicates the mind; and unless those with whom it is entrusted are carefully watched," such men will not govern the people "according to the known laws of the state." How intently will Congress be watching?