- The "fog of war" obscures more than just news
from the battlefield. It also provides cover for radical domestic legislation,
especially ill-considered liberty-for-security swaps, which have been historically
popular at the onset of major conflicts.
-
- The last time allied bombs fell over a foreign capital,
the Bush Administration rammed through the USA PATRIOT Act, a clever acronym
for maximum with-us-or-against-us leverage (the full name is "Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism").
-
- Remarkably, this 342-page law was written, passed (by
a 98-1 vote in the U.S. Senate) and signed into law within seven weeks
of the Sept. 11 terrorist attack. As a result, the government gained new
power to wiretap phones, confiscate property of suspected terrorists, spy
on its own citizens without judicial review, conduct secret searches, snoop
on the reading habits of library users, and so General John Ashcroft wants
to finish the job. On Jan. 10, 2003, he sent around a draft of PATRIOT
II; this time, called "The Domestic Security Enhancement Act of 2003."
The more than 100 new provisions, Justice Department spokesperson Mark
Corallo told the Village Voice recently, "will be filling in the holes"
of PATRIOT I, "refining things that will enable us to do our job."
-
- Though Ashcroft and his mouthpieces have issued repeated
denials that the draft represents anything like a finished proposal, the
Voice reported that: "Corallo confirmed ... that such measures were
coming soon."
-
- You can read the entire 87-page draft here. Constitutional
watchdog Nat Hentoff has called it "the most radical government plan
in our history to remove from Americans their liberties under the Bill
of Rights." Some of DSEA's more draconian provisions:
-
- * Americans could have their citizenship revoked, if
found to have contributed "material support" to organizations
deemed by the government, even retroactively, to be "terrorist."
As Hentoff wrote in the Feb. 28 Village Voice: "Until now, in our
law, an American could only lose his or her citizenship by declaring a
clear intent to abandon it. But - and read this carefully from the new
bill - 'the intent to relinquish nationality need not be manifested in
words, but can be inferred from conduct.'" (Italics Hentoff's.)
-
- * Legal permanent residents (like, say, my French wife),
could be deported instantaneously, without a criminal charge or even evidence,
if the Attorney General considers them a threat to national security. If
they commit minor, non-terrorist offenses, they can still be booted out,
without so much as a day in court, because the law would exempt habeas
corpus review in some cases. As the American Civil Liberties Union stated
in its long brief against the DSEA, "Congress has not exempted any
person from habeas corpus ñ a protection guaranteed by the Constitution
ñ since the Civil War."
-
- * The government would be instructed to build a mammoth
database of citizen DNA information, aimed at "detecting, investigating,
prosecuting, preventing or responding to terrorist activities." Samples
could be collected without a court order; one need only be suspected of
wrongdoing by a law enforcement officer. Those refusing the cheek-swab
could be fined $200,000 and jailed for a year. "Because no federal
genetic privacy law regulates DNA databases, privacy advocates fear that
the data they contain could be misused," Wired News reported March
31. "People with 'flawed' DNA have already suffered genetic discrimination
at the hands of employers, insurance companies and the government."
-
- * Authorities could wiretap anybody for 15 days, and
snoop on anyone's Internet usage (including chat and email), all without
obtaining a warrant.
-
- * The government would be specifically instructed not
to release any information about detainees held on suspicion of terrorist
activities, until they are actually charged with a crime. Or, as Hentoff
put it, "for the first time in U.S. history, secret arrests will be
specifically permitted."
-
- * Businesses that rat on their customers to the Feds
ñ even if the information violates privacy agreements, or is, in
fact, dead wrong ñ would be granted immunity. "Such immunity,"
the ACLU contended, "could provide an incentive for neighbor to spy
on neighbor and pose problems similar to those inherent in Attorney General
Ashcroft's Operation TIPS."
-
- * Police officers carrying out illegal searches would
also be granted legal immunity if they were just carrying out orders.
-
- * Federal "consent decrees" limiting local
law enforcement agencies' abilities to spy on citizens in their jurisdiction
would be rolled back. As Howard Simon, executive director of Florida's
ACLU, noted in a March 19 column in the Sarasota Herald Tribune: "The
restrictions on political surveillance were hard-fought victories for civil
liberties during the 1970s."
-
- * American citizens could be subject to secret surveillance
by their own government on behalf of foreign countries, including dictatorships.
-
-
- * The death penalty would be expanded to cover 15 new
offenses.
-
- * And many of PATRIOT I's "sunset provisions"
ñ stipulating that the expanded new enforcement powers would be
rescinded in 2005 ñ would be erased from the books, cementing Ashcroft's
rushed legislation in the law books. As UPI noted March 10, "These
sunset provisions were a concession to critics of the bill in Congress."
-
- I wouldn't be writing this article today had an alarmed
Justice Department staffer not leaked the draft to the Center for Public
Integrity in early February. Ashcroft, up to that point, had repeatedly
refused to even discuss what his lawyers might be cooking up. But if 10,000
residents of Los Angeles had been vaporized by a "suitcase nuke"
in late January, it is reasonable to assume that the then-secret proposal
would have been speed-delivered for a congressional vote, even though Congress
has not so far participated in drafting the legislation (which is, after
all, its Constitutional role).
-
- As a result of the leak, and the ensuing bad press, opposition
to the measure has had time to gather momentum before the first bomb was
dropped on Saddam's bunker. Some of the criticism has originated from the
right side of the political spectrum ñ a March 17 open letter to
Congress was signed not only by the ACLU and People for the American Way,
but the cultural-conservative think tank Free Congress Foundation, the
Gun Owners of America, the American Conservative Union, and more.
-
- One does not have to believe that Ashcroft is a Constitution-shredding
ghoul to find these measures alarming, improper and possibly illegal. Glancing
over the list above, and at the other DSEA literature, I can see multiple
ways in which a Fed with a grudge could legally ruin my life. Removing
checks and balances on law enforcement assumes perfect behavior on the
part of the police.
-
- Safeguarding civil liberties is an unpopular project
in the most placid of times. Since Sept. 11, the Bush Administration has
shown that it will push the envelope on nearly every restriction it considers
to be impeding its prosecution of the war on terrorism. This single-minded
drive requires extreme vigilance, before the fog of war becomes toxic.
-
- -----
-
- Detailed critiques of the Patriot II draft have been
prepared by the ACLU and the Center for Public Integrity. The Lawyers Committee
for Human Rights also has a useful 98-page report on post-Sept. 11 civil
liberties, and the Electronic Privacy Information Center maintains an outstanding
PATRIOT-related site.
-
-
- Matt Welch is the Los Angeles correspondent for the National
Post, and an editor of the L.A. Examiner. He also maintains a weblog about
current events.
-
- http://www.alternet.org/story.html?StoryID=15541
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