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:
a... 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.)
b... 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 – a protection guaranteed by the Constitution – since the Civil War."
c... 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."
d... Authorities could wiretap anybody for 15 days, and snoop on anyone's Internet usage (including chat and email), all without obtaining a warrant.
e... 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."
f... Businesses that rat on their customers to the Feds – even if the information violates privacy agreements, or is, in fact, dead wrong – 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."
g... Police officers carrying out illegal searches would also be granted legal immunity if they were just carrying out orders.
h... 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."
i... American citizens could be subject to secret surveillance by their own government on behalf of foreign countries, including dictatorships.
j... The death penalty would be expanded to cover 15 new offenses.
k... And many of PATRIOT I's "sunset provisions" – stipulating that the expanded new enforcement powers would be rescinded in 2005 – 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 – 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.