Civil Liberties Under Attack By Administration

The Bush administration and its Justice Department are taking unprecedented actions that should be cause for widespread unease.

You don't have to be partisan or paranoid to find it a cause for unease that three Reagan appointee appeals judges, named by a conservative Republican Chief Justice to a shadowy court, meeting in secret at a Justice Department headed by a conservative Republican Attorney General, resolved a key issue of personal privacy.

The 24-year-old Foreign Intelligence Surveillance Court of Review, in its first and so far only ruling, basically erased the distinction between surveillance wiretaps, e-mail intercepts, etc... for intelligence gathering and surveillance for criminal prosecutions. Basically, this makes secret wiretap warrants easier to obtain, and Attorney General John Ashcroft immediately announced that he would take full advantage of his expanded powers.

Taken by itself, this ruling may not be a terribly big deal. But taken as part of a pattern, it shows a disturbingly dismissive attitude by the Bush administration toward questions of personal privacy, freedom of information, and civil liberties.

The administration has assigned itself the right to jail American citizens without charge, without counsel, and without habeas corpus solely on its say-so. Post-9/11, the Justice Department swept up about 1,200 foreigners and held them in secret, deciding their fate in closed hearings.

Early on, the Bush White House reserved to itself the right to decide what papers would be released from the libraries of previous Presidents. The administration placed gratuitous limits on freedom of information requests to the Department of Homeland Security and exempts some functions of the department, such as advisory committees, from federal open-meetings regulations.

The surveillance appeals court acted because a lower, seven-judge surveillance court had unanimously rejected an Ashcroft wiretap request because the expanded powers he invoked did not adequately protect Americans' privacy. The lower court is hardly obstructionist. Until this case, it had never turned down a wiretap request, approving 934 in 2001 alone. The fact that the lower panel was this concerned should be cause for others to be concerned.

Normally, this sort of legal contradiction would be resolved by the Supreme Court, but the Justice Department is the only party to this proceeding, and having gotten what it wanted, it's certainly not going to appeal. That means that the new Congress will have to face up to the question of whether basic America protections are being eroded piecemeal.