As the United States marches toward Baghdad and braces for terrorist reprisals back home, Attorney General John Ashcroft may see in America's orange-alert fears and us-against-them attitude a target of opportunity he cannot resist. The man who pushed the USA PATRIOT Act through a terrified Congress in the days after Sept. 11, 2001, may be planning a new assault on civil liberties in the wake of the war on Iraq.
In February, the Center for Public Integrity uncovered a confidential Justice Department draft of the Domestic Security Enhancement Act of 2003. The legislation picks up where the PATRIOT Act left off -- more wiretaps and secret searches, government access to credit reports and other personal records, a database of DNA samples, and provisions allowing the attorney general to revoke the U.S. citizenship of anyone who provides assistance to a group the government considers a "terrorist" organization.
The draft drew a barrage of criticism from across the political spectrum. The Lawyers Committee for Human Rights called it a "Department of Justice wish list" that would "endanger core civil liberties," while William Safire denounced it as both an "assault" and an "abomination."
Although the 120-page draft had the detailed look of a proposal ready for congressional consideration, the Justice Department quickly downplayed it as merely the brainstorming of low-level staff. When pressed about the proposed security measure at a Senate Judiciary Committee hearing earlier this month, Ashcroft devolved into an odd exploration of the self-referential passive voice: There was nothing to discuss with the Senate, the attorney general said, because "no final discussion has been made with the attorney general."
But that was early March -- before U.S. armed forces moved into Iraq, before intelligence officials declared additional terrorist attacks a "near certainty," before a recent round of court decisions signaled increased judicial acceptance of the administration's war on terror, and before a smattering of news reports showed signs that Americans may be adopting for themselves the with-us-or-against-us approach the administration has taken with foreign countries and internal dissenters alike.
It is a target-rich environment for Ashcroft now, and civil libertarians fear that he may be ready to fire soon. Last week, a remarkable alliance of more than 65 advocacy groups -- ranging from the American Civil Liberties Union and the NAACP to the American Conservative Union and the Gun Owners of America -- took the unusual step of writing to Congress to oppose legislation that has not yet been introduced. The theory: If they wait until the moment of crisis when Ashcroft unveils what they're calling PATRIOT Act II, it will already be too late.
"Last time around, the attorney general announced that he was sending up a bill and that he expected Congress to enact it within three days," the ACLU's Timothy Edgar said of Ashcroft's post-9/11 push for the first PATRIOT Act in an interview with Salon. "They ended up taking six weeks, but they still didn't have a single hearing, and members were unable to obtain a complete text of the legislation even after they voted on it."
Edgar said he hopes the groups' preemptive strike will put Congress on notice of the "broad and deep concern" about PATRIOT II, and that Congress will have the courage to question the need for the new law enforcement powers in it. But in the climate of intolerance, intimidation and fear now swirling around the war on terror, he also knows that this may be wishful thinking.
The drumbeat began just days after Sept. 11, when George W. Bush told the nations of the world: "Either you are with us, or you are with the terrorists." It grew louder -- and closer to home -- when Ari Fleischer warned that "all Americans" should "watch what they say," and then again when Attorney General Ashcroft said that those who complained of lost liberties during the war on terror "aid terrorists" by giving "ammunition to America's enemies and pause to America's friends."
As Osama bin Laden slipped away and the war on terror slid into the war on Iraq, the president began to beat the drum so persistently that it was hard to hear anything else. He dismissed worldwide antiwar protests as something akin to "focus groups," he refused to acknowledge that the leaders of other nations honestly disagreed with him about the best way to disarm Iraq, and he signaled contempt for a reporter who asked about the costs -- both financial and human -- of the war he seemed so determined to fight. As if serving as a poster boy for political intolerance wasn't enough, Bush even went so far as to hint that American citizens might take it upon themselves to punish immigrants from countries that failed to fall in line with his plan to rid the world of Saddam Hussein. As Paul Krugman reported in the New York Times, when Bush was asked whether the United States would retaliate against Mexico for failing to support the drive for war, he said that the U.S. government probably wouldn't, then volunteered that there was already a "backlash against the French, not stirred up by anyone except the people."
In Washington and beyond, the president's supporters have heard the drums and begun to dance to the tune. When Senate Minority Leader Tom Daschle expressed sadness that Bush's failure to find a diplomatic solution was finally leading to war, House Speaker Dennis Hastert said Daschle had come "mighty close" to giving "comfort" to the enemy. House Majority Leader Tom DeLay, R-Texas, more bluntly told the South Dakota Democrat to shut his mouth. "Fermez la bouche, Monsieur Daschle!" he snapped, equating Daschle's criticism with France's efforts to block a war resolution in the United Nations. When an attorney named Stephen Downs wore an antiwar T-shirt to a suburban New York mall, the mall's owners had him arrested. And when a 16-year-old kid named Felix Fanaselle failed to stand when a flag-waving Lee Greenwood song blasted over the loudspeakers at a Houston rodeo, he was spat upon, assaulted and told to "go back to Iraq." Never mind that Fanaselle is an American citizen of Italian and Mexican descent -- you're either with us or you're with the terrorists.
That with-us-or-against-us message may be starting to take root in the entertainment industry as well. According to Matt Drudge, CBS warned musicians not to speak out against the war during the Grammy Awards last month. Last week, radio and concert giant Clear Channel barred protest groups from distributing literature at an Ani DiFranco concert in New Jersey -- and threatened to pull the plug on DiFranco or anyone else who made antiwar comments from the stage. Sean Penn has filed suit against director Steven Bing, claiming that he lost a role for speaking out against the war. And Martin Sheen, whose real-life politics put him to the left of the president he plays on TV, says that NBC executives have expressed their discomfort about his public antiwar stand. A story on the Oscars in the New York Times this week hinted at the possibility that outspoken war critics may find themselves blacklisted in Hollywood.
Tamara Saviano learned something about that this month. A producer for the Great American Country music video channel, Saviano was flipping through her personal e-mail account at home one night when she came across a message from Charlie "The Devil Went Down to Georgia" Daniels. It was an open letter to Hollywood -- all of those "pitiful, hypocritical, idiotic, spoiled mugwumps" who had raised their voices against the impending war on Iraq. Echoing the words of the president, Daniels argued that "the war against Saddam Hussein is the war on terrorism," that America is in "imminent danger," that "you're either for her or against her" and that there is "no middle ground."
Saviano responded -- again, on her private e-mail account -- with a message in which she called Daniels' screed "anti-American." Daniels' publicist complained to GAC, and the next morning Saviano was fired.
"I'm a little too young to remember McCarthyism, but I've got the feeling that it might be happening again," Saviano told Salon. "I wonder where it came from, this idea that anybody who wants to question this administration or debate things publicly is labeled unpatriotic?"
Steven Shapiro is a spokesman for GAC's parent company, Jones Media Networks. Saviano wasn't fired for expressing her political views, he said, but rather for suggesting a boycott of Charlie Daniels' music and concerts while failing to make it sufficiently clear that she wasn't speaking for GAC.
Jones Media Networks also owns a number of country music radio stations. Did on-air personalities at any of those stations join in the nationwide calls to boycott the Dixie Chicks after one of the Chicks told a London concert crowd that they were "ashamed" of President Bush? "That's a good question," Shapiro said. He said he'd look into it and call back when he knew more. He never did.
It is easy to write off these isolated incidents as blips on the radar of war -- the misguided patriotism of random rednecks or the private-citizen equivalents of the House Republicans' efforts to obliterate all things French from their gastronomical vocabulary. The victims survive and get on with their lives. The mall owner eventually dropped the charges against Stephen Downs, Felix Fanaselle wasn't seriously injured in the rumble at the rodeo, and although Tamara Saviano figures she'll always be a "pariah" in Nashville, she's already at work on a new project publishing the written works of American roots artists. Someday soon, the world may even be safe for French fries again.
But what will be lost in the meantime? Will the climate of fear and intimidation that gives rise to the isolated incidents of intolerance also pave the way for more widespread and long-lasting limitations on civil liberties?
It already has.
As war began last week, the Lawyers Committee for Human Rights issued a new report on the changes in law and government policy since Sept. 11. The report, a six-month follow-up to one the committee released on the first anniversary of the terrorist attacks, documents the ongoing erosion of "basic human rights protections in the United States, including fundamental guarantees central to our constitutional system."
Any such report must begin with the USA PATRIOT Act itself, which Congress adopted and Bush signed less than two months after Sept. 11. The act handed sweeping new powers to law enforcement, the military and U.S. intelligence agencies, and it blurred the traditionally clear lines that divided them. Among other things, it granted federal law enforcement officers broad authority to use wiretaps and other forms of electronic surveillance; it expanded the circumstances under which the FBI could conduct searches under the forgiving rules of the Foreign Intelligence Surveillance Act rather than under the stricter tests of the Fourth Amendment; and it gave the president the power to confiscate property of those believed to be attacking the United States.
Scattered voices of dissent raised concerns that these new powers might be abused. A year and a half later, it is hard to know whether the critics were right. By and large, the Justice Department has refused to provide Congress with information about its use of the PATRIOT Act tools. What is clear, however, is that Justice Department officials and FBI agents have dramatically increased their use of secret searches and other clandestine techniques since the PATRIOT Act was passed.
The Washington Post reported Monday that Ashcroft has authorized more than 170 secret searches and/or wiretaps -- more than three times the total authorized over the past 23 years by all other attorneys general combined. Meanwhile, the Post reported, FBI field offices have issued scores of so-called national security letters, a PATRIOT Act tool that requires businesses to provide the FBI with information about an individual's finances, telephone calls, e-mail messages and the like -- all without a warrant and all without prior court approval.
A few weeks after he signed the PATRIOT Act, Bush took matters a step further when he signed an executive order requiring that noncitizens suspected of participating in or supporting acts of terrorism be detained by the military and tried by military tribunals rather than in federal courts. At about the same time, the Justice Department took the position that it was entitled to eavesdrop on the conversations between inmates and their lawyers in order to protect against future acts of terrorism.
Of course, not all civil liberties received such cavalier treatment. Although the PATRIOT Act allows the FBI to obtain records showing what books you purchased at the local bookstore or checked out from the library -- a suspect's reading habits might suggest an unsettling interest in the architecture of tall buildings -- Ashcroft has insisted that the FBI cannot review the records of gun-purchase background checks in the course of a terror investigation.
As the initial sense of panic cooled in the months after Sept. 11, federal courts began to stand up against some of the incursions on the civil liberties of terror-related suspects. Georgetown University law professor David Cole initially saw that as a hopeful sign; in an article he wrote for the Nation last summer, he suggested that the shock of 9/11 had "given way to a renewed interest for the rule of law."
It didn't last. This week, the Supreme Court refused to hear a case in which the American Civil Liberties Union challenged the Justice Department's use of wiretaps and other forms of surveillance authorized by the Foreign Intelligence Surveillance Act in domestic criminal prosecutions.
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit held that more than 600 detainees in U.S. military custody at Guantánamo Bay have no right to challenge their confinement in U.S. courts. So long as the detainees are noncitizens who were captured outside the United States during some sort of military operation and are now being held outside the United States, the courts of the United States "are not open to them." Although the Guantánamo Bay Naval Base where the detainees are being held is inarguably controlled by the U.S. military, the court held that it was outside the reach of the federal courts because the United States merely leases the land from Cuba.
In the open-ended war on terror -- with its infinitely flexible definitions of "enemy" and "field of battle" -- the decision puts incredible power in the hands of the U.S military. Under the ruling, U.S. Special Forces could secretly kidnap, say, a British editorial writer who opposes the war on Iraq. And so long as they took him to someplace like Guantánamo -- rather than to a military prison in the United States itself -- they could keep him there forever if they wished. A U.S. court could do absolutely nothing about it.
Cole finds the decision shocking -- and yet not. "If you look at history," he says, "courts in times of crisis defer to the executive." Although Cole says such wartime decisions frequently include "rules" that prevent abuses of civil liberties once the war is over, the potentially unending nature of the war on terror may undercut any such protections.
And in the meantime, allowing the administration to have its way now may embolden Ashcroft and others to seek new tools for the war on terror -- even if those tools come at the expense of civil liberties that would otherwise be held sacrosanct.
Such may be the case with the Domestic Security Enhancement Act. Like the PATRIOT Act, PATRIOT II is a collection of provisions that touch upon virtually every aspect of law enforcement in the United States and abroad. Among other things, it would:
Although PATRIOT Act I and many of the other more publicized efforts in the war on terror have focused on the rights of foreigners and of aliens living in the United States, the Domestic Security Enhancement Act aims much more squarely -- and broadly -- at the rights of U.S. citizens. Cole and others believe that this shift of focus may finally cause Congress to put on the brakes. Indeed, when reliable administration supporters like Bill O'Reilly and the American Conservative Union raise serious concerns about a proposal, as they have with PATRIOT Act II, there may be hope that Justice Department officials will exercise some restraint in what they propose, or at least that Congress will be emboldened to ask hard questions before giving in.
There have been some civil liberties victories in recent months, particularly where the executive branch has reached for powers that would intrude on the privacy rights of individual Americans. Ashcroft last year asked Congress for authority to launch Operation TIPS -- a program that would have turned the nation's letter carriers and meter-readers into junior spies -- but Congress turned him down.
Earlier this month, the Senate Commerce Committee approved a measure that will require Tom Ridge to report to Congress on the civil-liberties impacts of CAPS II, a government computer program designed to assign terrorist risk levels to everyone who boards a commercial airliner.
And last month, Congress placed a hold on any funding for the Total Information Awareness program, a Defense Department plan to build a massive database on U.S. citizens based on everything from their credit card statements and medical records to the words they type into Internet search engines. Perhaps members of Congress found the privacy intrusions too much to stomach, or maybe they just couldn't believe that the administration was really suggesting that the Defense Department's John Poindexter -- the former Reagan National Security Advisor who lied to Congress about the Iran-Contra affair -- should actually be the man who is trusted with the private information of every American citizen. Either way, they found the temerity to say no to the program.
But with the troops on the battlefield in Iraq and the fear of terrorist reprisals back home, it is hard to believe Congress will hold off the administration forever. If U.S. soldiers are killed in substantial numbers or if terrorists strike at U.S. targets, members of Congress will feel the need to stand with the troops, with the president, and with "us" instead of "them." That may mean standing with John Ashcroft as well.
"The real danger to our liberty comes from politicians wanting to look like they are doing something in a time of crisis," said the ACLU's Edgar. "Unfortunately, it's inevitable that there will be politicians, including politicians in the Justice Department, who aren't really looking to make us safer but to take advantage of the situation."