Letters at 3AM

Appear to Be Dangerous

Letters at 3AM
Illustration By Jason Stout

Ancient history: The year is 111 CE. Pliny the Younger is the Emperor Trajan's legate to Bithynia-Pontus, a city on the Black Sea. Pliny's discovered lots of Christians there. He's learned of them, he writes, when "a placard was put up, without any signature, accusing a large number of persons by name." He has interrogated many, declared some innocent, tortured others, and executed still others, but the number yet to be dealt with is so significant that he writes Rome for instructions. Emperor Trajan has nothing against persecuting Christians, but his reply to Pliny includes the following caution about anonymous placards: "Informations without the accuser's name subscribed must not be admitted in evidence against anyone, as it is introducing a very dangerous precedent, and is by no means agreeable to the spirit of the age."

Tell that to George W. Bush. He's claiming more judicial power than even a Roman emperor.

The Bush White House is mounting the most sustained and successful attack on the Constitution in America's history. Review it in sequence:

October 25. A Senate vote of 99-1, and a House vote of 357-66, passed Bush's USA-PATRIOT Act (acronym for "the United and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism Act of 2001"). Among its provisions: Government agents may enter your home without your knowledge and without a warrant, if federal attorneys claim the search has a "significant purpose" relating to an ongoing investigation. So "probable cause," which must be specific, has been replaced by "significant purpose," which could mean anything. The law allows the government to monitor telephone and Internet communications with no specific warrants, and to listen in on attorney-client conversations in prison. Its definition of "terrorism" should terrify you: "Acts dangerous to human life that are a violation of the criminal laws ... [or that] appear intended to intimidate or coerce the civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping." Only the last clause specifies violent acts; the definition mainly concentrates on dangerous acts that "appear intended to intimidate or coerce." Defined broadly, that could include peaceful protest and civil disobedience -- such acts are certainly intended to "intimidate" the government; the law could even indict articles like this one, if this article is accused of intending to inspire peaceful protest or civil disobedience.

Why say "dangerous" rather than "violent" acts? Because everyone knows what "violent" means, but this law lets the government define "dangerous." Dangerous to whom? (J. Edgar Hoover thought Martin Luther King dangerous and dogged him mercilessly.) Why the vague word "appear"? Who gets to define the appearance of an act of protest? The USA-PATRIOT Act gives the government the sole right to define it, after the fact -- for a protest must first occur in order to appear to be anything. You won't know you've appeared to be dangerous until after you've done something. This law is meant to be defined as it goes along. That's dangerous.

November 1. President Bush signed an executive order giving an incumbent president veto power over the release of documents from past administrations. According to The Week, "Historians and journalists will be forced to demonstrate a 'specific need' for documents to be released to the public." In practice this means that the American presidency now has the power to operate under a cloak of complete secrecy.

An aside: Senate hearings during the first week of November revealed that a month after the first anthrax case the FBI had yet to locate all the American labs that legally handle anthrax, much less any illicit anthrax producers. Could Bush's constitutional extremism be a cover for incompetence? Or is it simply to avoid admitting that, after the most intensive search in our history, he simply hasn't found any terrorists in America? He clearly lacks hard evidence. Which might explain:

November 13. President Bush signed an executive order sanctioning secret military tribunals, answerable only to the president himself, in which defendants cannot select their own lawyers, have no right of appeal, and may not even be allowed to see the evidence against them. (Emperor Trajan would be shocked.)

Also November 13. Ashcroft orders police departments across the country to pick up and question 5,000 men from Middle Eastern countries. According to Ashcroft's guidelines, these people will be asked "for a list of phone numbers of friends and relatives." Police chiefs in Portland, Eugene, and Corvalis, Oregon, Seattle, Ann Arbor, Detroit, Tucson, Baltimore, and Richardson (a Dallas suburb), among others -- either have refused the order outright or watered it down considerably. Again in this crisis, some American police are behaving heroically.

November 15. Attorney General Ashcroft said his arrests are meant to prevent other attacks. Which means: People on American soil are being held indefinitely, without specific charges and with no evidence, for what might happen. Well, we want to be protected, don't we? But (jumping a little ahead here) on December 1, The New York Times reported that "some at the FBI have been openly skeptical about claims that some of the 1,200 people arrested were Al Qaeda members ... 'It's just not the case,' an official said. 'We have 10 or 12 people we think are Al Qaeda people, and that's it. And for some of them, it's based only on conjecture and suspicion.'"

Which again begs the question: Are these extremist measures a cover to avoid the political cost of admitting that the most intensive investigation in American history has turned up next to nothing?

November 14. Vice-President Cheney emerged from his secure location long enough to assure the media that terrorist suspects would receive fair trials from military tribunals. He didn't sound convincing to our allies, however:

November 23. Spain informed the United States that it will not extradite the eight men it has charged with complicity in the September 11 attacks unless Bush agrees that they'll be tried by a civilian court under our Constitutional guarantees. The next day The New York Times reported that "a senior European Union official who asked not to be identified said he doubted any of the 15 [EU] nations -- all of which have renounced the death penalty and signed the European Convention on Human Rights -- would agree to extradition that involved the possibility of a military trial." Five days later Spain's prime minister, Jose Maria Aznar, met with Bush at the White House. Obviously under intense pressure to change Spain's position, in his Rose Garden news conference (with Bush at his side) he said only: "If and when the United States requests that extradition, we will study the issue." I.e., he's standing fast, politely but firmly. Our Constitutional rights are being defended more vigorously by Europeans than by Americans.

November 26. Attorney General Ashcroft explained why he won't reveal the identities of 1,000 or so men being held indefinitely without charges: "It would be a violation of the privacy rights of individuals for me to create some kind of list of all of them that are being held." Let's get this straight. ... He's holding 1,000 people unconstitutionally, without charge and without prospect of release, but he won't tell us their names so that he can protect their rights?

November 27. Senator Arlen Specter (Penn.-Rep.): "The administration has yet to show where the president gets the authority for this extraordinary executive order [regarding military tribunals]." During the Clarence Thomas hearings, Specter was one of the most vicious questioners of Anita Hill. He's no angel. If he's worried, you should be worried.

November 28, The New York Times: "The Justice Department has quietly expanded its power to detain foreigners, letting the government keep a foreigner behind bars even after a federal immigration judge has ordered him to be released for lack of evidence." Read that twice. Ashcroft usurped the power to reverse a federal judge who has already determined a lack of evidence. Again and again the Bush administration is demonstrating utter contempt for the requirement of evidence in a criminal proceeding.

November 30. Anthony Lewis in The New York Times: "The Bush [tribunal] order could easily be extended to citizens, under the administration's legal theory. Since the Sixth Amendment makes no distinction between citizens and aliens, the claim of war exigency could sweep its protections aside for anyone in this country who might fit the vague criterion of aiding terrorism."

There's more, but I'm out of space. Listen to Rep. John D. Dingell (D-Michigan): "I hear a lot of [House] members saying they're concerned, but not many willing to say it publicly."

They're not willing to say it publicly because they're not hearing from enough of us. Do you want to save your Constitution? Make yourself heard. end story

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USA-PATRIOT Act, September 11, civil liberties, John Ashcroft, U.S. Constitution, military tribunals

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