Bush going too far curtailing our rights


November 16, 2001 | WASHINGTON (New York Times) — The Bush administration is using the national trauma and state of emergency resulting from the Sept. 11 terrorist attacks to trample the Bill of Rights.

Operating on fears and apparently sensing that the American people may be willing to forego many of their civil liberties in the name of national security, Attorney General John Ashcroft, in particular, is riding roughshod over individual rights.

Let's hope the people are not willing to set aside key protections of the Constitution in the current crisis. Once taken away, those basic rights may be hard, if not impossible, to restore.

To win confirmation for his Cabinet post, the right-wing Ashcroft overcame strong opposition to his controversial appointment by promising to carry out the law of the land even if he disagreed with it. And he has certainly done that on the issue of legal abortion rights.

But he is now using the war in Afghanistan and on the home front to push his own ideology. An egregious example is his approval of a rule that permits the Justice Department to eavesdrop on the confidential conversations between lawyers and some clients in federal custody. These clients include suspects who have been detained but not charged with a crime whenever the government says such steps are necessary to prevent acts of terrorism.

Ashcroft rammed the rule through late last month as an emergency measure without allowing the usual waiting period for public comment. The regulation permits the government to monitor conversations and intercept mail between the suspects and their lawyers for up to a year.

The Justice Department now says the attorney general must be able to certify that "reasonable suspicion" exists to believe that a particular detainee or federal prison inmate is using contacts with a lawyer to "facilitate acts of terrorism."

In the amended version the department stressed, as a "safeguard," that the attorney and client would be notified if they are being monitored and that information protected by the attorney-client privilege may not be used by the prosecution without a judge's permission. But there would be no protection for communications related to ongoing or contemplated illegal acts.

The fact that Ashcroft buckled somewhat shows that having a vigilant public can pay off.

But he still refuses to release the names or numbers of people detained for questioning about terrorism.

The new anti-terrorism law that Congress passed last month has given him a much freer hand to deal with such matters -- and to curb basic rights. The law permits the government to detain or deport suspects, eavesdrop on Internet communications, monitor financial transactions and obtain electronic records on individuals.

Middle Easterners, especially students, are special targets -- one more example of racial profiling, which apparently is in style again.

In another action, Ashcroft moved to inhibit press freedom, a First Amendment right, by encouraging federal agencies to use the pretense of national security to hide public records that the press is ordinarily entitled to receive under the Freedom of Information Act. The law was passed during the Cold War to encourage an open government. Last month Ashcroft issued a memo to federal agencies telling officials that if they decide to deny requests for information filed under the FOIA, they "can rest assured that the Department of Justice will defend your decisions ... ."

Such a retreat into secrecy, while an outrageous violation of the principles of openness followed by previous administrations, is just what you can expect from this one.

On Tuesday night, after declaring an "extraordinary emergency," President Bush announced he had issued a directive claiming the power to order military trials for suspected international terrorists and their collaborators. That directive, which applies to non-U.S. citizens arrested here or abroad, allows him to take the highly unusual step of bypassing the nation's criminal justice system with its rules of evidence and constitutional guarantees. I think that would be a mistake.

Even before the horrific terrorist bombings of the World Trade Center and the Pentagon, Ashcroft had edged around the U.S. Constitution by holding prayer meetings every morning in his Justice Department office. With the clear approval of President Bush, Ashcroft is moving aggressively against civil liberties in the hunt for terrorists. But in his headlong rush to ignore the Constitution, he should remember the words of Benjamin Franklin: "If we give up our essential rights for some security, we are in danger of losing both."

Thomas is a Washington, D.C.-based columnist for the Hearst Newspapers.

Seizing Dictatorial Power

An Essay by William Safire

November 2001 | WASHINGTON — Seizing Dictatorial Power Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.

In his infamous emergency order, Bush admits to dismissing "the principles of law and the rules of evidence" that undergird America's system of justice. He seizes the power to circumvent the courts and set up his own drumhead tribunals — panels of officers who will sit in judgment of non-citizens who the president need only claim "reason to believe" are members of terrorist organizations.

Not content with his previous decision to permit police to eavesdrop on a suspect's conversations with an attorney, Bush now strips the alien accused of even the limited rights afforded by a court-martial.

His kangaroo court can conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court.

No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial."

On what legal meat does this our Caesar feed? One precedent the White House cites is a military court after Lincoln's assassination. (During the Civil War, Lincoln suspended habeas corpus; does our war on terror require illegal imprisonment next?) Another is a military court's hanging, approved by the Supreme Court, of German saboteurs landed by submarine in World War II.

Proponents of Bush's kangaroo court say: Don't you soft-on-terror, due-process types know there's a war on? Have you forgotten our 5,000 civilian dead? In an emergency like this, aren't extraordinary security measures needed to save citizens' lives? If we step on a few toes, we can apologize to the civil libertarians later.

Those are the arguments of the phony-tough. At a time when even liberals are debating the ethics of torture of suspects — weighing the distaste for barbarism against the need to save innocent lives — it's time for conservative iconoclasts and card-carrying hard-liners to stand up for American values.

To meet a terrorist emergency, of course some rules should be stretched and new laws passed. An ethnic dragnet rounding up visa-skippers or questioning foreign students, if short-term, is borderline tolerable. Congress's new law permitting warranted roving wiretaps is understandable.

But let's get to the target that this blunderbuss order is intended to hit. Here's the big worry in Washington now: What do we do if Osama bin Laden gives himself up? A proper trial like that Israel afforded Adolf Eichmann, it is feared, would give the terrorist a global propaganda platform. Worse, it would be likely to result in widespread hostage-taking by his followers to protect him from the punishment he deserves.

The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.

But what if he broadcasts his intent to surrender, and walks toward us under a white flag? It is not in our tradition to shoot prisoners. Rather, President Bush should now set forth a policy of "universal surrender": all of Al Qaeda or none. Selective surrender of one or a dozen leaders — which would leave cells in Afghanistan and elsewhere free to fight on — is unacceptable. We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist force.

If he does, our criminal courts can handle them expeditiously. If, as more likely, the primary terrorist prefers what he thinks of as martyrdom, that suicidal choice would be his — and Americans would have no need of kangaroo courts to betray our principles of justice.

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