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The secret society
amatullah
04/26/03 at 09:12:15
Here is a disturbing report on civil liberties in the United States.



The secret society
Under Attorney General John Ashcroft, America is becoming an Orwellian
state where people are
locked up and no one can find out why -- least of all a compliant
Congress.

- - - - - - - - - - - -
By Tim Grieve (Salon.com)



April 18, 2003  |  Mike Hawash was on his way home from his job at Intel
in Portland, Ore., last
month when FBI agents surrounded him in the company parking lot and took
him into custody. At
the same moment, agents armed with assault rifles were storming through
Hawash's home, terrifying
his wife and three small children waiting for their father to come home.

The agents took Hawash to a federal prison outside of Portland, where he
has been held in solitary
confinement for nearly a month. Hawash is a 38-year-old immigrant --
born on the West Bank and
raised in Kuwait -- who has been a U.S. citizen for 15 years. He has not
been charged with any
crime, and there has not been any suggestion that he committed one. The
Justice Department says
Hawash is a witness, but it won't say to what. It won't say what
information it wants from him, it
won't say what agents were hoping to find when they searched his house,
it won't say why he needs
to be in custody, and it won't say how long it plans to keep him there.

These aren't the only things the Bush
administration won't say. It won't say why
it's holding individual detainees at
Guantánamo Bay; it won't disclose the
factual basis for its prosecution of Zacarias
Moussaoui; and it won't say how many
immigrants it has detained or deported in
INS proceedings. It won't say how many
of us are having our telephones tapped,
our e-mail messages monitored or our
library checkout records examined by
federal agents. The administration's
defenders say such secrecy is an
unavoidable cost of the war on terror, but
it's an orientation that predated Sept. 11
and that extends beyond the terror threat.
The White House won't reveal who Vice President Dick Cheney consulted in
concocting the
administration's energy policy; it won't disclose what Miguel Estrada
wrote while working for the
solicitor general; it won't even release documents related to the
pardons that former President Bill
Clinton granted during his last days in office.

It won't disclose any of these things because it doesn't have to. In the
war on terror -- and outside of
it -- the Bush administration is finding increasing latitude to operate
with secrecy as the norm, and
accountability the exception. Congress has handed the administration
broad new powers without
requiring it to account for their use, while courts have repeatedly
granted the government the right to
operate outside the public view and -- at times -- without any
possibility of judicial review.


And if Attorney General John Ashcroft and Utah Republican Sen.
Orrin Hatch have their way, the situation may soon get much worse.
Ashcroft's Justice Department is apparently eyeing legislation --
dubbed PATRIOT Act II -- that would further expand the
administration's powers to act in unilateral silence. Meanwhile, Hatch
is
working to make PATRIOT Act I permanent now -- it is currently set
to expire in 2005 -- before Congress can consider whether the Justice
Department is making appropriate use of the broad surveillance
powers provided by it.

Steven Aftergood, a researcher who monitors government secrecy issues
for the Federation of
American Scientists, calls Hatch's proposal a "direct assault" on
Congress' ability to monitor the
Justice Department. "If it goes through, we might as well go home," he
told Salon. "The
administration will have whatever authority it wants, and there won't be
any separation of powers at
all."

It is a dire prediction. But in some ways, it has already come true.
Congressional aides complain that
the Justice Department has denied Congress the information it needs to
serve as a meaningful check
on possible executive branch abuses, and the federal courts are
increasingly refusing to involve
themselves in cases in which the administration's policies -- on
secrecy, on terror or on executive
authority more generally -- have been questioned. As a result, the
executive branch is increasingly
free to act on its own, without the checks and balances typically
imposed by a separated
government.

The White House denies that it is operating under any unnecessary cover
of darkness. At a
conference of newspaper editors earlier this month, Vice President Dick
Cheney categorically
rejected the perception that the administration has become a "foe of
openness," and he said that the
Pentagon's program of "embedding" reporters with troops in Iraq proves
that the administration is
committed "to the free flow of information about very important events."

But just as free-roaming reporters in Iraq have now begun to show that
their embedded colleagues
saw only the stories the Pentagon wanted them to see, there is
increasing concern at home that the
White House feels free to tell Congress, the courts and the public only
as much as it cares to reveal.

"On a lot of these kinds of questions, the responses are, 'We can't tell
you,' or 'We're not going to
tell you,' and on some it's, 'We don't keep that kind of information,'"
said Lee Tien, a senior staff
attorney for the Electronic Frontier Foundation. "That's what I find
offensive. They say, 'We can't
give you a full picture, but we can tell you that we thwarted a
kidnapping or caught a child
pornographer.' So they get to spin it, and you hear the stuff they'd
like to tell you about, but you
never hear anything about the rest."

Six weeks after Sept. 11, Congress enacted the USA-PATRIOT Act. Among
other things, the act
makes it possible for the FBI to obtain personal information about U.S.
citizens -- logs of their
Internet activities, the books they check out from the library, their
bank transactions and their phone
calls -- without any evidence that the subject of such information is
involved in any way in any
criminal activity. In some cases, the act allows the FBI to obtain such
information based solely on its
own decision to do so, without first seeking a warrant from a federal
court. The PATRIOT Act also
dramatically increases the circumstances under which federal law
enforcement officers can conduct
wiretaps and secret searches under the Foreign Intelligence Surveillance
Act.

What the PATRIOT Act does not do is impose any requirement that the
administration inform
Congress -- or anyone else -- as to how these new powers are being used.
In typical legislation
involving criminal law, that might not have been a problem. As the EFF's
Tien explained, law
enforcement officers involved in criminal investigations have a strong
incentive to police themselves
when it comes to civil liberties: If they conduct searches or make
arrests in violation of constitutional
safeguards, the evidence they need for a conviction may not be
admissible at trial. But in
wide-ranging and open-ended anti-terror investigations, there frequently
is no such check. If agents
violate the privacy rights of a library patron or conduct unlawful
surveillance of an innocent citizen,
there may be no ramifications because there likely would be no trial in
which such evidence would
come to light -- and possibly be suppressed.

Thus, Tien said, abuses are more likely in
such investigations. Yet Congress "didn't
change the reporting requirements or
enhance them in any way" when it adopted
the USA-PATRIOT Act. "And then when
members of Congress began to think,
'What do we know about what the White
House or DOJ is doing?' they realized that
they didn't know a whole hell of a lot."

So in 2002, Congress began to ask
questions. But congressional aides say that
the Justice Department has been so
tight-lipped about its post-9/11 actions
that Congress still lacks basic information
about the use and usefulness of the
PATRIOT Act powers. And without such information, they say, Congress can
neither monitor the
department effectively nor make intelligent decisions about whether the
PATRIOT Act strikes an
appropriate balance between preventing terrorist acts and protecting
civil liberties.


An aide to one Democratic member of the Senate Judiciary Committee
told Salon that the committee has had "extreme difficulty" in learning
how the Justice Department is implementing the PATRIOT Act. Aides
on the Republican side of the aisle tell a similar story. Ask them about

the administration's responses to Judiciary Committee queries, and
you'll hear words like "slow," "recalcitrant, and "a teeth-pulling
exercise."

An aide to Iowa Republican Sen. Chuck Grassley said his boss is
"frustrated" by the Justice
Department's failure to cooperate more fully with the committee. "Sen.
Grassley believes that
senators, particularly senior senators on committees of jurisdiction,
have a right to have reasonable
questions answered," the aide said. "Now, sometimes people say, 'Tell me
how many grains of sand
are on a pyramid.' But 'How often have you used this new power? And what
has been the result?'
Those are legitimate questions that should be answered."

Some of them haven't been. For example, said Tien, the Justice
Department has refused to say how
many times it has demanded information from libraries about the books
checked out by individual
patrons. More generally, the Senate Judiciary Committee has asked the
Justice Department
numerous times for information about its practices under the PATRIOT Act
and the Foreign
Intelligence Surveillance Act. Some of those requests have not been
answered at all, said the aide to
a Democratic member of the committee, while others have been answered
only incrementally.

"The curtain came down just after the work on the USA-PATRIOT Act," the
aide said. "That's
when the unilateralism started, both in the Justice Department and in
the administration overall."

While some departments have been more responsive to congressional
requests, Senate aides say
that many have joined Justice in putting such inquiries on what one
Republican Senate aide called
"the slow boat to China." He said that administration officials seem
surprised and resentful that they
are expected to provide any information at all. "They probably figure,
'We've got both houses in our
pocket and we don't have to get oversight stuck up our ass,'" he said.
"They probably figured they
could paint [Vermont Democratic Sen. Patrick] Leahy and [Democratic Rep.John] Conyers as
partisan. But there are [Republican members of Congress] who ask
questions and expect answers,
too."

One of those members is Rep. James Sensenbrenner, the Wisconsin
Republican who chairs the
House Judiciary Committee. Last summer, Sensenbrenner and Democratic
Rep. John Conyers Jr.
asked the Justice Department to provide the committee with basic
statistical information about its
use of its PATRIOT Act tools. The department stalled so long that
Sensenbrenner eventually
threatened to issue subpoenas and to vote against renewal of the PATRIOT
Act when it expires in
2005 pursuant to the "sunset provision" written into the act. In an
interview with editors of the
Milwaukee Journal Sentinel, Sensenbrenner said he told Ashcroft: "If you
want to play, 'I've got a
secret,' good luck getting the PATRIOT Act extended. Because if you've
got bipartisan anger in the
Congress, the sunset will come and go and the PATRIOT Act disappears."

Shortly thereafter, the Justice Department provided answers to the
committee's questions. In an
interview with Salon last week, Sensenbrenner aide Jeff Lungren struck a
conciliatory tone.
Sensenbrenner and Ashcroft now meet for lunch on a regular basis, he
said, and any problems they
may have had were the result of the natural "tension" between an
executive department and the
congressional committee that oversees it.

Still, Lungren agreed that keeping the five-year sunset provision in the
PATRIOT Act is "critical" to
understanding how the act is being used and whether any "tweaks or
changes" need to be made.

At the time of the PATRIOT Act's passage, many members of Congress said
they wouldn't have
voted for the act without the sunset provision. Leahy said at the time
that the provision was key to
ensuring oversight of the Justice Department. He reiterated that view in
a written statement issued
earlier this month, saying that Hatch's proposal to make the PATRIOT Act
permanent now would
rob Congress of what "little leverage" it has in obtaining information
from the Justice Department and
would "give up the ghost" on any further congressional oversight.

"Oversight is how we know how well or how poorly these and other laws
work in practice, and the
sunset conditions give Congress and the American people at least a
little leverage in getting
answers," Leahy said. "History shows that a government that doesn't want
oversight often is a
government that has something to hide."

Some in the civil liberties community see the oversight efforts being
made by Leahy, Grassley and
Sen. Arlen Specter, R-Penn., as a resurgence of congressional authority
after a period of
acquiescence to administration demands. They view the Hatch proposal as
a check on that trend.
"It's a frontal challenge," said the FAS's Aftergood. "It's a test of
the backbone that we're beginning
to see. And if it works, congressional oversight will be just a courtesy
extended by the executive
branch, with no rigor or mandatory character to it."

To be sure, the administration, at times with the help of compliant
federal courts, has already
undercut the ability of Congress -- and the public more generally -- to
oversee the government's
activities, both in the war on terror and otherwise.

In October 2001, Attorney General John Ashcroft changed the baseline
government policy on
Freedom of Information Act requests from one favoring disclosure to one
favoring secrecy. Under
Clinton Attorney General Janet Reno, federal agencies were to comply
with Freedom of Information
Act requests unless there was a real risk of "foreseeable harm" in doing
so. But under the Ashcroft
policy, agencies are to refuse to disclose information sought under FOIA
if there is any "sound legal
basis" for doing so.

In November 2001, President Bush signed
an executive order granting himself the
power to veto all requests to open the
records of former presidents, even if a
former president wants his records
released. Under the Presidential Records
Act -- like FOIA, passed in the wake of
Watergate -- most records of a president
are to be made available for public review
12 years after the president leaves office.
Bush's executive order effectively gutted
the Presidential Records Act and allowed
him to deny public access to records from
the Reagan administration -- including
records related to his father's role as vice
president.

Groups of historians and journalists have filed suit over the executive
order in the U.S. District Court
for the District of Columbia. The case is still pending. But if recent
decisions from that court are any
guide, the historians and journalists should not count on reviewing
Reagan-era documents anytime
soon.


Earlier this month, the District of Columbia court held that the Bush
administration could refuse to release records related to President
Clinton's last-minute pardons of Marc Rich and others based upon
Bush's assertion of a "presidential communications privilege" over the
records. While Bush likely had no interest in keeping Clinton's
deliberation's secret, Bush's arguments before the court -- and the
court's ultimate ruling in his favor -- pave the way for him to keep his

own pardon deliberations secret.

And in December, the same court dismissed a lawsuit in which the General
Accounting Office
attempted to obtain the identities of energy industry officials and
others with whom Vice President
Cheney met in the course of developing the administration's energy
policy.

In his talk with newspaper editors earlier this month, Cheney trumpeted
the court’s decision as a
ruling that the administration had acted "in an appropriate way" in
keeping the information secret.
"That’s a lie," said Tien of the EFF. Having held that the federal
official who oversees the GAO
lacks legal standing to bring such a lawsuit, the court had no occasion
to opine about the
administration’s actions one way or the other.

And the legal disputes over Cheney’s energy task force are far from
over. On Thursday, two federal
appellate judges lashed out at Justice Department lawyers trying to
persuade the U.S. Court of
Appeals for the District of Columbia Circuit to prevent Judicial Watch
and the Sierra Club from
reviewing some of the task force’s records. But it’s no surprise that
the earlier decision in the GAO
case stands out for Cheney. A decision that the administration was right
would have been a good
thing; a decision saying the courts have no business hearing such a
challenge was even better.

The D.C. Circuit -- usually considered the "second-highest" court in the
land -- handed the
administration just such a victory in its war on terror earlier this
year. In a decision that dumbfounded
civil libertarians, the D.C. Circuit held that 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 non-citizens
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."

If the decision stands, the administration will be free to do whatever
it likes with the detainees --
without any fear that a court is going to stand in the way or cause it
any problems later. Thus, the
detainees' only hope is that the executive branch that holds them
decides to treat them justly. There
is no other check, no other balance.

The detainees' case is one of several from the war on terror that may be
decided by the Supreme
Court in the coming year or so. In another, the ACLU, on behalf of a
group of New Jersey
newspapers, is challenging the Justice Department's decision to close
all immigration proceedings
deemed by the Justice Department to be "of interest" to its terrorism
investigations. One court of
appeal has upheld the practice; another has condemned it. Given the
split among the lower courts, it
is likely the Supreme Court will agree to take the case and decide the
issue.

But like other federal courts, the Supreme Court is likely to grant the
administration substantial
leeway in prosecuting the war on terror as it sees fit. In fact, the
Supreme Court has already begun
to do so. Last month, the court refused to hear the ACLU's challenge to
the Justice Department's
practices under the Foreign Intelligence Surveillance Act -- in
particular, its failure to maintain a
"wall" between domestic police activities and spying activities under
FISA.

In his 1998 book on civil liberties during wartime, "All the Laws But
One," Chief Justice William
Rehnquist observed that courts typically defer to the executive branch
during wartime but then pull in
the reins as the immediacy of war subsides. It is not clear how that
tendency may play out in the
potentially unending war on terror. But even if it does -- that is, even
if the courts begin to demand
accountability from the executive branch -- the Bush administration
still has a trump card: It can take
its business elsewhere.

The trial judge presiding over the case of Zacarias Moussaoui -- the
only person charged in the
United States so far in connection with the Sept. 11 attacks -- has
raised questions about whether
Moussaoui can be tried in the shroud of secrecy the Justice Department
has wrapped around the
case. She has also held that Moussaoui's lawyers are entitled to
interview a high-ranking al-Qaida
official currently in U.S. custody, an interview the Justice Department
vigorously opposes.

The Justice Department has insisted that Moussaoui can be tried fairly
while preserving government
secrets, and it has challenged the ruling on the al-Qaida interview in
an appeal now pending before
the notoriously conservative U.S. Court of Appeals for the Fourth
Circuit. But if the trial judge
ultimately rules that the Justice Department has to give up some of its
secrets to try Moussaoui -- or
if the Fourth Circuit agrees that the al-Qaida interview must go forward
-- there are signs that the
Justice Department will simply dismiss the case and file new charges
against Moussaoui before a
military tribunal.

President Bush issued an executive order in November 2001 establishing
such tribunals. In trials
before them, he said, the rights guaranteed to defendants in regular
criminal trials -- rights set forth in
the Constitution, the Federal Rules of Criminal Procedure and the
Federal Rules of Evidence -- are
"not practicable" and therefore do not apply. If the administration
chooses to try Moussaoui before
such a tribunal, the judicial branch of government will have been
removed from the equation
altogether.

With the Domestic Security Act of 2003 -- the draft legislation dubbed
"PATRIOT Act II" -- the
administration is apparently contemplating other ways in which it might
avoid the inconvenience of
operating in the public eye or answering to the federal courts.

The draft legislation, prepared by the Justice Department but not yet
proposed to Congress,
includes provisions that would allow federal agents to keep secret the
names of individuals arrested
in investigations related to "international terrorism"; expand the
circumstances under which agents
could conduct searches and wiretaps without warrants; and allow the
attorney general to deport
resident aliens in certain circumstances without any possibility of
judicial review.

With trials before military tribunals and legislation like PATRIOT Act
II on the horizon, it may be
that Mike Hawash should be considered lucky. Having worked for years in
the computer industry,
he has friends who have launched a Web site to draw attention to his
plight. He has a lawyer, he has
the backing of the ACLU, and he has the attention of at least one U.S.
senator. Still, he has the Bush
administration's Justice Department aligned against him, and that cannot
be a comfortable place to
be.

"Since Sept. 11, the Justice Department has shown a contempt for due
process," said David
Fidanque, the executive director of the ACLU in Oregon, which is
watching Hawash's case closely.
"Secrecy is paramount to them, and the Constitution is an obstacle to
overcome."

Last week, the court in Hawash's case held that the Justice Department
can keep him in custody at
least until the end of the month so that it will have time to take his
deposition or have him testify
before a grand jury. While portions of the court's decision were made
public, the reasons for the
Justice Department's interest in him -- and the purported factual basis
for keeping him in custody --
were not.


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