- An ugly theory popped up in the nation's capital several
weeks ago. The Bush administration would wait until war began, and worry
gripped the homeland, to ram a staggering package of domestic security
measures through a Congress silenced by fears of seeming unpatriotic. Such
measures would radically expand the executive branch powers already inflated
by the 2001 USA Patriot Act. On Friday - as the U.S. began suffering combat
fatalities, and the terror alert on whitehouse.gov glared orange for "high"
- Justice Department spokesperson Mark Corallo confirmed to the Voice that
such measures were coming soon. Exact details are confined to "internal
deliberations," he said, but the proposals "will be filling in
the holes" of the Patriot Act, "refining things that will enable
us to do our job."
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- But a new, comprehensive review of Bush's growing presidential
power hardly reveals any "holes." Rather - using court positions,
internal policy changes, and secret decisions as bricks - the administration
has built the executive branch into a fortress, nearly invulnerable to
the checks of the judiciary and Congress. Most alarming, according to the
watchdog authors of the 96-page report, "Imbalance of Powers,"
the complexity of this historic expansion continues to mask its true proportions.
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- "You have to connect the dots," said Elisa
Massimino, Washington, D.C., director of the Lawyers Committee for Human
Rights (LCHR), a 25-year nonprofit defender of civil liberties and humane
policy. LCHR analyzed hundreds of pages of legislation, policy directives,
and congressional records, plus a spate of major court cases such as the
suit challenging the indefinite detention, without representation, of accused
American "dirty bomber" Jose Padilla. The big picture shows an
"executive branch amassing so much more power," said Massimino,
even in the past six months alone. But since many developments have occurred
"under the radar," she said, few members of Congress, let alone
of the public, could easily map out such a blueprint on their own.
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- Briefly, the dots connect like this:
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- The administration's refusal to release Patriot Act-related
records to Congress, the refusal to release the names of detainees and
open their court hearings to the public, and the Freedom of Information
Act exemptions under the Homeland Security Act add up to a secretive government,
acting outside the scrutiny of the public and its representatives.
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- The development of the Total Information Awareness program,
the mining of individuals' shopping and library records, and the melding
of spy and arrest functions add up to government invasion of privacy and
restriction of expression.
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- The indefinite detention of U.S. citizens deemed by Bush
to be "enemy combatants," the secret detention and deportation
of immigrants not charged with a crime, and the tracking and questioning
of nationals from particular countries add up to unilateral executive power
to deprive people of their physical liberty.
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- Even with the existing behemoth, Massimino said, a "quantum
leap" in executive branch authority is possible. She referred to the
recently leaked Justice Department draft bill, the Domestic Security Enhancement
Act of 2003, commonly known as Patriot Act II. "It would make over
100 changes to existing law," she said. But as recently as March 4,
Attorney General John Ashcroft was being coy about it, refusing to discuss
any of the 86-page draft at a Senate hearing.
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- Among the more extreme powers Patriot Act II would grant
the executive branch: The ability to strip citizenship from an American
who supports a group the feds label as terrorist. Secret arrests - the
government could avoid revealing the location of, charges against, and
evidence on someone it was holding. Far looser checks on search-and-seizure
activities of law enforcement. And a DNA database for people deemed to
be terrorist suspects.
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- Yale Law School professor Jack Balkin was among the
first constitutional experts to condemn Patriot Act II as "a new assault
on our civil liberties." Last week he told the Voice, "What we're
really worried about here is something being proposed while all eyes are
on Iraq. People are whipped up into a frenzy. The executive will propose
what, at a certain time, it thinks it can get away with." That, he
said, could be the draft bill "in its most virulent form."
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- Before the war began, there were signs that Congress
might fight future presidential power-hogging and bring more heft to the
legislative branch. Some Democrats excoriated Ashcroft for his furtiveness
on Patriot Act II. Some Republicans were talking about subpoenaing records
that the Justice Department refused to release on its use of Patriot Act
I powers.
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- Yet wartime has traditionally meant deferring to the
executive. The entire post-September 11 period may have seemed like one
big state of war, with the Justice Department successfully skirting Congress
and pushing every constitutional challenge to higher, more administration-friendly
courts. But given the actual war in Iraq, Supreme Court Justice Antonin
Scalia said last week, Americans can expect that "protections [of
their individual rights] will be ratcheted right down to the constitutional
minimum."
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- Ashcroft deflected angry Senate queries on Patriot Act
II, saying "it would be the height of absurdity" to imagine the
administration's hustling through a law without congressional review. Yet
on October 25, 2001, 98 out of 99 voting senators hurriedly passed the
342-page Patriot Act I - without any public debate and before most of them
had read it. The White House made clear their votes would be spun as a
test of their patriotism. Votes on Patriot Act II could also be a test
- of who has the patriotism to right democracy's severely lopsided structure
of checks and balances.
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