National Security

Published — September 17, 2003 Updated — May 19, 2014 at 12:19 pm ET

Commentary — The assault on liberty (continued)

The Bush Administration Pushes to Expand the Patriot Act

Introduction

President George W. Bush used the second anniversary of the September 11th terrorist attacks not only to praise the controversial USA Patriot Act but to promote further expanding federal law enforcement powers.

Speaking at the FBI Academy in Quantico, Virginia, Bush said “Under current federal law, there are unreasonable obstacles to investigating and prosecuting terrorism,” and he recommended allowing authorities in terrorist investigations to issue subpoenas without going to judges or grand juries, to make it easier to hold terrorism suspects without bail, and to add more death penalty statutes.

His comments affirmed at last the Administration’s quiet, longstanding ambitions, which the White House and Attorney General John Ashcroft and his staff had tried unsuccessfully for months to obscure. Last February, when the Center for Public Integrity obtained secret draft legislation, entitled “The Domestic Security Enhancement Act of 2003,”— an apparent sequel to the USA Patriot Act, known as “Patriot II,”—Justice Department officials told us that they had no knowledge of it. After we posted it on the Web, they tried to publicly portray it as essentially an internal memo, just one of many drafts circulating around. So what if the 100-plus page, legalistic document read as though it could be introduced tomorrow at 10 a.m., and had a routing “control sheet” that suggested dissemination to the Vice President and the Speaker of the House?

The damage control spin was unabashed, breathtaking and deceptive, naturally delivered with a straight face. But that wasn’t the worst part. For at least half a year, the Attorney General and his top aides refused to answer dozens of questions posed by members of Congress overseeing the implementation of the USA Patriot Act, nor did they reveal that a sweeping expansion of Patriot II legislation was being drafted. Indeed, some Justice Department officials had flatly asserted that there was no such legislation being planned. Leading Republican and Democratic members of Congress were completely clueless, in other words, and had never heard of the Domestic Security Enhancement Act of 2003, much less read it.

So when the legislation was exposed—and the unprecedented, new powers it called for caused great public consternation from both liberal and conservative Americans nationwide—members of Congress felt blindsided and betrayed. To this day there remains residual resentment.

From February through August, perhaps because of the firestorm of criticism, the Bush administration did not drop the shoe of the so-called Patriot II Act. But weeks ago, Attorney General Ashcroft began traveling around the nation in a public campaign to soften public attitudes about the provisions of the Patriot Act and prepare America for more, even tougher legislation, his efforts obviously a carefully-orchestrated accompaniment to the President’s Quantico speech on September 10th.

Bush said, “We will never forget the servants of evil who plotted the attacks, and we will never forget those who rejoiced at our grief.”

He is right: We are indelibly scarred by the attacks. But we are also reminded every 10 minutes by politicians from both parties who try to gain political favor from the horror of 9/11. Beyond the graceless pandering and manipulations of public opinion about that national tragedy in ways that appear to be frequently untethered to truth itself, my sensibilities are also offended by the way the President and his Attorney General arrogantly kept America, including the Congress and the news media, in the dark about their plans for more unbridled power in the name of national security.

As I noted last February, the Bush Administration introduced and got the Patriot Act enacted into law almost unanimously in just a few weeks, warp speed for Congress. The Senate Judiciary Committee literally had an hour and a half hearing in which Attorney General John Ashcroft testified but took no questions. In the House, meanwhile, there was no testimony allowed from opponents of the bill.

Democracy is not supposed to work this way. People are supposed to be informed, and discourse and debate are supposed to ensue. Constitutionally guaranteed liberties and rights on the books for centuries should at least be discussed before they are diminished. Perhaps we as a people are sufficiently terrorized and afraid that we want to grant government greater powers to increase intelligence-gathering, surveillance and other law enforcement prerogatives – and simultaneously decrease judicial review and public access to information. But shouldn’t that be the result of a robust, informed, national conversation, with answers to reasonable questions about how existing, including recently enacted, laws have been implemented?

Even more troubling, though, is the Administration’s predisposition toward secrecy, which I first wrote about in this space in July 2002 (“Freedom of Information under Attack,” June 20, 2002). The Bush White House and Attorney General Ashcroft have imposed new secrecy never seen before in the modern, post-Watergate era, and much of it appears to be unrelated to national security or September 11th.

Take, for example, the case of Associated Press investigative reporter John Solomon, whose home phone records were seized secretly by federal Justice Department prosecutors a month before September 11th. They were looking to identify his sources.

That was an invasion of the customary space between government and working journalists trying to do their jobs, and there was and remains no good excuse for the chilling effect such drastic action can cause. Then, earlier this year, the FBI opened his mail—in the name of national security of course.

In the United States of America that I know, we just don’t do that to courageous journalists seeking the truth. Has all judgment and decorum, decency and fairness, been lost? We talked to John Solomon about this sordid matter, and a transcript of our questions and his answers tells us more. But many questions remain unanswered. Perhaps most trenchantly, What are we to make of an Administration that encroached on longstanding procedures that protect our constitutional rights, even prior to September 11th?

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