The War on Civil Liberties

By Noah Leavitt, FindLaw.com. Posted September 13, 2004.

Reviewed: Elaine Cassel, The War on Civil Liberties: How Bush and Ashcroft have Dismantled the Bill of Rights (Lawrence Hill Books, 2004)

This week, our nation somberly marks the third anniversary of the devastating attacks against New York and Washington D.C. In the three years since 9-11, America has, thankfully, not suffered a second terrorist attack.

Members of the Bush Administration – especially Attorney General John Ashcroft – have claimed that this is proof of the success of their anti-terror laws, and proof that extending and expanding these laws will make us even safer. Indeed, at the Republican convention, high-level politicians said that Congress must not only reauthorize, but strengthen such legislation.

But even if the laws are effective - and a very strong case can be made that they are not – can we afford the civil liberties cost? In her new book, The War Against Civil Liberties, Elaine Cassel reminds us how much the legal landscape has changed in this short period.

Indeed, Cassel argues that the past three years have altered America's constitutional order such that we may never again be able to enjoy the broad individual rights and presumptions that were the hallmark of our laws before 9-11. The Executive Branch, she persuasively contends, will never give up the power it has been given - and curtailment of our liberties will continue to expand, sweeping in broader and broader sections of the population.

Cassel, an attorney and author, is known for her popular blog covering the Justice Department, federal judiciary and Executive Branch. (She also is a guest columnist and book reviewer for this site). In less than 200 pages – one afternoon of reading – her timely book provides a sweeping yet nuanced look at how our constitutional rights have been drastically diminished since 9-11.

In her book, Cassel has neatly woven three years of national and international media coverage into a series of manageable examples – examples that allow the reader to quickly grasp her larger critical arguments. Cassel skillfully connects individual news stories to a much broader historical context.

Cassel's writing is informative and accessible while still being scholarly, making the book appropriate for both lawyers and non-lawyers - as well as for both newshounds and those new to these discussions.

The War Against Civil Liberties: The Legal Background

Cassel both explains and critiques the major laws at issue in the War on Terror: The 1996 Antiterrorism and Effective Death Penalty Act; the USA PATRIOT Act of 2001, and the Homeland Security Act of 2002. She demonstrates how these laws, especially viewed together, drastically undermine the Bill of Rights - shifting tremendous amounts of power to the Executive branch, severely compromising the American system of checks and balances.

Cassel also adeptly chronicles and comments on federal courts' rulings in a number of terrorism prosecutions - including the problematic cases of Zacarias Moussaoui, John Walker Lindh, and alleged terrorist cells in Lackawanna, Detroit, Portland, Seattle and Alexandria. She contends that in such cases, the courts have allowed violations both of the Fourth Amendment - which limits warrantless searches and seizures - and the Sixth Amendment, which guarantees a fair trial.

In addition, she focuses on two cases involving American attorneys – Lynne Stewart and Jesselyn Radack. Both have been targeted by the Justice Department.

Stewart allegedly aided communications by the terrorists she represented. But her attorney contends, and Cassel believes, she is really being persecuted for that representation itself.

Meanwhile, Radack spoke out against the infringement of John Walker Lindh's constitutional rights, while she was at the Department of Justice - contending that his interrogation violated his Fifth Amendment right against self-incrimination. Her conscientiousness was punished.

Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. He can be contacted at nsleavitt@hotmail.com.

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