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The War on Due Process 

With Patriot Act power, Bush and Ashcroft try to conquer the legal system

Thursday, Jul 3 2003
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Page 5 of 5

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.

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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.

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