Terrorizing the Bill of Rights

Congress has overwhelmingly passed, and the president has enthusiastically signed, an anti-terrorism bill that, as the ACLU says, gives "enormous, unwarranted power to the executive branch unchecked by meaningful judicial review." Moreover, "most of the new powers could be used against American citizens in counterterrorism investigations and in routine criminal investigations completely unrelated to terrorism." (Emphasis added.) Also likely to be subject to this law: "those whose First Amendment activities are deemed to be threats to national security by the attorney general."

That many details of this new law are in contempt of the Bill of Rights is unknown to most Americans because, with few exceptions, the press -- particularly its television and radio divisions -- has not been paying enough attention. Even in the usually dependable New Yorker, Jeffrey Toobin blithely writes that these changes in the law "do not represent a wholesale retreat from civil liberties."

To understand how this subversion of the Constitution took place, it's first necessary to explore one of the most undemocratic breakdowns in the history of our legislative process. Attorney General John Ashcroft had pressed for passage of his anti-terrorism legislation within a week. But on the House Judiciary Committee, an unusual bipartisan coalition -- Barney Frank and Maxine Waters in collaboration with Bob Barr and Majority Leader Dick Armey -- put some elements of the Bill of Rights back in the bill. And in the Senate, Judiciary Committee chairman Patrick Leahy at first resisted the intense pressure from Ashcroft and the White House to ram the bill through. Leahy later went with the crowd.

By a 36-to-0 vote, the House Judiciary Committee did pass a somewhat improved version of the bill; but late at night, behind closed doors, House Speaker Dennis Hastert, other Republican leaders, and operatives from the White House scuttled that legislation and crafted a new bill.

On October 12, right after that coup, the House voted, 337 to 79, for a 175-page bill that most of its members hadn't even had time to read. Democratic congressman John Conyers said on C-Span that only two copies of the bill were available to his side of the aisle.

Congressman David Obey of Wisconsin reacted mordantly to what he described as "a backroom quick fix" before the vote. "Why should we care?" he said. "It's only the Constitution."

Barney Frank said it plainly: "This was the least democratic process for debating questions fundamental to democracy I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process, comes before us immune from amendment."

Another sneak attack on the democratic process had put a quick fix on the Senate Judiciary Committee's anti-terrorism bill. Present at that closed-door session were Senate leaders and emissaries from the administration.

Swiftly, the Senate passed that much harsher legislation by a vote of 96 to 1 on October 11. Again, most members of the "world's greatest deliberative body" did not have time to read the entire 243-page bill.

The only senator with the honesty and courage to vote against this attack on due process, the Fourth and First Amendments, and others of "our cherished liberties," as the attorney general had called them, was Russell Feingold of Wisconsin. On the floor of the Senate, Feingold had tried to rouse his colleagues to repel this attack on the Constitution:

"It is crucial that civil liberties in this country be preserved. Otherwise, I'm afraid terror will win this battle without firing a shot."

There were some differences between the House and Senate bills. The hope of the ACLU and other civil libertarians was that in the traditional conference between the two legislative bodies to negotiate an agreement, at least some of the excesses of Ashcroft's proposals could be removed.