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© St. Petersburg Times, published October 20, 2002
Just like the frog in a pot of water that doesn't realize it's being boiled to death because the temperature is raised so gradually, so too can a populace fail to appreciate the erosion of its freedom.
Polls show, distressingly, that most Americans would willingly give away civil liberties in pursuit of security. But while Americans believe giving up freedom means added inconvenience at the airport, the Bush administration has used this moment to obliterate the checks and balances that keep the executive branch operating within legal constraints.
Over the past year, the administration's transgressions have piled up: from refusing to disclose information to Congress on the Sept. 11 detainees, to dismissing the Geneva Conventions as inapplicable to the hundreds of Guantanamo Bay prisoners, to telling the federal courts to butt out of a decision to hold Americans as enemy combatants, without charge or access to lawyers.
Our arrogant, cowboy executive and his minions see themselves as not answerable to any countervailing power, be it Congress, the courts or international law. Their credo is: We know what we're doing and we don't have to explain it to you. (Even the vote on whether to approve a pre-emptive attack on Iraq came grudgingly and with repeated claims that Congress wasn't needed to act.)
We are in this mess partly due to a pliant Congress. After Sept. 11, it was browbeaten into passing the USA Patriot Act, which granted significant new surveillance and detention authority to federal law enforcement. This Saturday marks its one-year anniversary.
How's the law doing? Is the Justice Department executing its new powers with due regard for civil liberties? Congress was supposed to keep on top of this but Attorney General John Ashcroft has made it virtually impossible. He's either ignored or been only partially responsive to numerous inquiries from the committees charged with oversight.
What we do know is Ashcroft has so expansively interpreted some of these new powers that he has raised the hackles of one of the executive branch's most consistent friends.
For the first time since its founding in 1978, the secret federal court established under the Foreign Intelligence Surveillance Act balked at a Justice Department request. The court publicly admonished the department for the way it was proposing to break down the wall between domestic law enforcement and foreign intelligence gathering.
Ashcroft was attempting an end-run around the protections of the Fourth Amendment, our guarantees against unreasonable search and seizure, and the court called him on it.
Our law separates intelligence gathering and law enforcement for important reasons relating to a limited government. Before police or the FBI can listen in to your phone conversations, search your house or read your e-mail, there must be probable cause that a crime has been or will be committed. Congress, though, recognized that when intelligence officials are tracking the activities of spies operating within the United States a lower standard for granting search warrants is needed. In those cases, the government only need show there is probable cause to believe the target of the search is a foreign agent, not that there is an imminent crime. And a special court was created to handle these surveillance requests, known as FISA warrants.
The USA Patriot Act complicated things by weaking the barrier between criminal prosecution and intelligence gathering. FISA warrants could now be issued when foreign intelligence was a "significant" purpose but not the sole purpose of the investigation. Law enforcement and intelligence gathering could now work side by side.
Ashcroft quickly interpreted the statute as giving prosecutors the ability to direct investigations using FISA warrants. His rulemaking gave federal agents an easy way to surveil someone for future prosecution without having to respect their constitutional rights.
But the judges of the Foreign Intelligence Surveillance Court refused to go along. They set out strict rules warning law enforcement officials not to "direct or control the use of FISA procedures to enhance criminal prosecutions." The court also demanded that all future FISA applications detail any ongoing criminal investigations and any conversations between intelligence officials and prosecutors. The court wanted to police any attempts to use it to violate a target's privacy rights.
Not surprisingly, Ashcroft has appealed.
The Bush administration has used every opportunity to exploit this national crisis as a way to arrogate power to itself. Whatever it couldn't get past Congress, it took through rulemaking. I expect we will find ourselves at the end of this "war" with our constitutional traditions of checks and balances and individual rights in tatters.
I wonder if anyone will notice.