Fear Drives the Making of a Secret Government
New York Times News Service
Wednesday, December 19, 2001
CASPER, Wyoming The Bush administration is creating a secret government - a government accountable to no one but the president. Congress stomps and moans yet does little to stop the administration from hacking away constitutional checks and balances. And a majority of the American people awash in fear do not care.
But fear and a thirst for revenge against the terrorist networks responsible for Sept. 11 are not reason enough to betray America's traditions of liberty. They cannot be a rationale for treating the Constitution and Bill of Rights as if they are mere scraps of paper.
Nearly 1,200 noncitizens have been detained by the Department of Justice, by presidential order - an order that violates the Fourth Amendment, which states: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause."
When a person from another country enters the United States, he or she receives many constitutional protections. The Bill of Rights speaks about the rights of people or persons, not citizens - it does not limit its guarantees of freedom only to citizens. Attorney General John Ashcroft has refused to disclose the identity of more than 500 people still being detained. Many have been shuffled from one jail to another, across state lines, so that they cannot contact attorneys to represent them. Many families did not know where their loved ones were for weeks. The Fifth Amendment states: "No person shall … be deprived of life, liberty, or property, without due process of law."
According to testimony to the Senate Judiciary Committee by those formerly detained or their attorneys, some were held for weeks without being charged, without being able to see an attorney and without a hearing before a judge. Others have been held for weeks after being cleared by the FBI of any criminal violations. They were held incommunicado, which violates a cardinal principle of liberty.
In order to keep the government accountable, the people have a right to know the conditions of confinement and whether the detainees are being treated fairly and properly. In late November, Amnesty International sent a 26-page memorandum to the attorney general listing its concerns relating to the treatment of the detainees. Its memorandum and a follow-up letter detail how some detainees were denied medicine and food, were held in handcuffs and shackles for prolonged periods of time and were subjected to beatings and other mistreatment.
On Dec. 5, the American Civil Liberties Union, the American-Arab Anti-Discrimination Committee and 16 other civil liberties organizations filed a lawsuit in federal court demanding immediate release of documents concerning the identity and location of the detainees.
Kate Martin, director of the Center for National Security Studies, a nonprofit civil liberties organization in Washington, said: "There is mounting evidence that secrecy is being invoked to shield serious violations of individual rights and not for legitimate investigative purposes."
On Dec. 6, with the arrogance of power that English kings once displayed before Parliament, Mr. Ashcroft told the Senate Judiciary Committee that its authority to oversee the Department of Justice was limited and that he would only answer those questions he wished to answer. In "some areas" he said, "I cannot and will not consult with you."
Congress's response to the executive branch's usurpation of power has been to pass bill after bill granting it greater wiretap authority, greater access to information about the public and loosening restrictions on federal law enforcement and intelligence agencies. Congress has, in effect, given up its constitutional duty to keep the presidency in check.
There should be a balance of power. There isn't. If Congress won't assert its rightful authority, Congress then yields its dominion to the presidency - that inevitably leads to autocracy.
The writer, editorial page editor of the Casper Star-Tribune, has a national reputation for Bill of Rights commentary. This comment was distributed by the New York Times News Service.
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