The War on Due Process

The PATRIOT Act’s many repressive measures — which also include authorizing warrantless break-ins and limiting judicial scrutiny over wiretaps, among others — received such wide attention when the bill was passed that it has become shorthand for a whole range of administration strategies. But the dangers go beyond the PATRIOT Act itself.

Increasingly, for instance, the Justice Department has turned grand juries into tools for intelligence gathering and coercing suspects, rather than for simply evaluating indictments. In several cases — such as that of computer scientist Mike Hawash in Portland — the Justice Department has used “material witness” warrants to justify an otherwise illegal detention. Hawash was arrested on March 20 and detained for five weeks without charge, with all evidence in his case deemed secret. He never testified before a grand jury. When a furious federal judge ordered his release, the government charged Hawash with “conspiracy to levy war against the United States,” attaching his name to a broader Portland indictment. Ashcroft’s Justice Department has detained other grand-jury “witnesses” for more than a year without charge, and in at least one case extracted a confession from one of those “material witnesses” later proved to be utterly false. Beyond the abuse of the material-witness law itself, the use of coercive grand juries evokes an ugly past. Coercive grand juries were a staple of 1960s investigations into the student and feminist movements and have long since been abandoned.

Strikingly, the Bush Justice Department’s attack on civil liberties leaves it not only isolated from abroad — even Iraq war allies Britain and Australia have voiced protest at the confinement of their citizens at Guantánamo — but from local officials at home. The National Immigration Forum recently released a report with a 14-page list of local police chiefs, sheriffs and other law-enforcement leaders who object to the Bush administration’s demand that they become frontline enforcers of immigration law. More than 100 municipalities have passed resolutions pledging varying degrees of noncooperation with intrusive USA PATRIOT Act provisions. Indeed, Ashcroft himself conceded that “We do not believe that the Justice Department is in a position to mandate that the local police enforce the federal laws.”

All of this suggests that even with support for President Bush generally high, unease over the PATRIOT Act and its progeny is substantial, bringing the possibility that Ashcroft himself will become a flashpoint in the presidential elections. Americans, Representative Bill Delahunt told the attorney general, “feel that the government is intent on prying into every nook and cranny of people’s private lives, while, at the same time, doing all it can to block access to government information that would inform the American people as to what is being done in their name.”

The book is by no means closed on whether the court system will sustain stretching the boundaries of investigation this much. The 2nd Circuit Court of Appeals, in early June, agreed to a speedy decision of Jose Padilla’s “enemy combatant” status. More than anything, the July 5 Judiciary Committee hearing, along with the inspector general’s report and other recent events, made clear the contradictory reality of the post–September 11 civil-liberties crisis. On the one hand, never before in American history have an attorney general and president moved so swiftly to unleash and centralize surveillance and secrecy.

At the same time, it is clear that it is a dangerous mistake to think of Ashcroft and the PATRIOT Act as simply a reincarnation of McCarythyism and COINTELPRO, the FBI’s notorious surveillance-and-disruption program of the 1960s. McCarthyism and the Red Scare swept broadly over the nation’s political culture, victimizing teachers, artists and union officials. Ashcroftism — at least so far — has far more narrowly targeted immigrant communities, and while administration-friendly, right-wing broadcast hosts tried to rouse hysterical attacks against anti-war protesters, those attacks had little traction. COINTELPRO enjoyed the enthusiastic support not only of the FBI but also of the broader federal bureaucracy, backed by local Red squads.

Ashcroft’s surveillance state, by comparison, has met unanticipated resistance within the federal bureaucracy — those leaks and court rulings, that inspector general’s report, growing congressional resentment. And it has often been rejected outright by local officials. Instead of a populist witch-hunt, Ashcroftism is mired in the Bush administration’s determination to stand above the scrutiny of courts, the oversight of Congress and the authority of local government and law enforcement. In that, it comes closer to an executive-branch coup than anything since Roosevelt tried packing the Supreme Court.