On the Road With Ashcroft

Attorney General John Ashcroft marked the two-year anniversary of the terrorist attacks of September 11 by launching a national publicity tour to sell Americans on the USA Patriot Act. That he felt the need to do so was itself revealing. The act is, of course, already law, and when it came to a vote just six weeks after the 9/11 attacks only a single senator (Russell Feingold) and sixty-six members of the House voted against it (even though almost no one had had time to read the 342-page bill before voting). But the act has come under increasing grassroots criticism ever since; more than 150 towns, cities and states have enacted ordinances condemning it, and the Justice Department finds itself on the defensive.

Even more telling, however, is the fact that Ashcroft's national tour will not address the public. His speaking engagements are all before closed audiences, primarily law-enforcement officers. The choice to speak to police and exclude the people captures much of the flavor of the Administration's war on terrorism: It has repeatedly sought to maximize police power while minimizing public oversight. But that tactic may be backfiring, as the American people are starting to fight back.

The Administration has done everything in its power to duck scrutiny of its actions. In the initial weeks after the attacks it arrested hundreds of people in secret, and it has continued to fight to keep their names secret, despite an Inspector General's report in June revealing that virtually all those arrested have been cleared of any connection to terrorism. It held secret trials for all those held on immigration charges and then staved off Supreme Court review of the practice, telling the Court that the trials had been completed and therefore there was no need to find whether the practice was constitutional (one court of appeals had declared it unconstitutional; another had upheld it).

The Administration has also opposed any judicial review of its detention of the more than 650 foreign nationals held incommunicado in Guantanamo Bay, Cuba, without charges, hearings or trials. And it initially argued that American citizens declared "enemy combatants" were similarly barred from seeking court review, abandoning that view only after the courts rejected it. Now it argues that the only "review" a court can exercise vis-a-vis citizens is a highly deferential perusal of a written declaration filed by a midlevel government functionary. The courts may not hear evidence from the detainee and may not look into the declaration's statements to determine whether they're true. According to the Administration, there is literally no opportunity for a person to present evidence that would prove his innocence.

The Administration has invoked a similarly one-sided process in its attacks on Muslim charities. It has frozen the assets of three of the country's largest, alleging that they have ties to terrorist groups. But when one of them -- the Holy Land Foundation -- produced evidence showing that the government's claims were false, the government moved to keep the evidence out of court, arguing that the charity had no right to present new evidence and that the court should uphold the government's actions on its evidence alone.

The Foreign Intelligence Surveillance Act (FISA), greatly expanded by the Patriot Act and heavily relied upon by the Justice Department since 9/11, is even more one-sided. It allows the government to conduct secret searches of "foreign agents" in criminal investigations without establishing probable cause of criminal activity, which the Fourth Amendment generally requires before a warrant can be issued. The fruits of these searches can be used in criminal trials, but the law does not permit those against whom the evidence is used access to the original search-warrant application, rendering illusory any review of the search's validity.