The secret society - part 1
Under Attorney General John Ashcroft, America is becoming an Orwellian state where people are locked up and no one can find out why -- least of all a compliant Congress.
- - - - - - - - - - - - By Tim Grieve
April 18, 2003 | Mike Hawash was on his way home from his job at Intel in Portland, Ore., last month when FBI agents surrounded him in the company parking lot and took him into custody. At the same moment, agents armed with assault rifles were storming through Hawash's home, terrifying his wife and three small children waiting for their father to come home.
The agents took Hawash to a federal prison outside of Portland, where he has been held in solitary confinement for nearly a month. Hawash is a 38-year-old immigrant -- born on the West Bank and raised in Kuwait -- who has been a U.S. citizen for 15 years. He has not been charged with any crime, and there has not been any suggestion that he committed one. The Justice Department says Hawash is a witness, but it won't say to what. It won't say what information it wants from him, it won't say what agents were hoping to find when they searched his house, it won't say why he needs to be in custody, and it won't say how long it plans to keep him there.
These aren't the only things the Bush administration won't say. It won't say why it's holding individual detainees at Guantánamo Bay; it won't disclose the factual basis for its prosecution of Zacarias Moussaoui; and it won't say how many immigrants it has detained or deported in INS proceedings. It won't say how many of us are having our telephones tapped, our e-mail messages monitored or our library checkout records examined by federal agents. The administration's defenders say such secrecy is an unavoidable cost of the war on terror, but it's an orientation that predated Sept. 11 and that extends beyond the terror threat. The White House won't reveal who Vice President Dick Cheney consulted in concocting the administration's energy policy; it won't disclose what Miguel Estrada wrote while working for the solicitor general; it won't even release documents related to the pardons that former President Bill Clinton granted during his last days in office.
It won't disclose any of these things because it doesn't have to. In the war on terror -- and outside of it -- the Bush administration is finding increasing latitude to operate with secrecy as the norm, and accountability the exception. Congress has handed the administration broad new powers without requiring it to account for their use, while courts have repeatedly granted the government the right to operate outside the public view and -- at times -- without any possibility of judicial review.
And if Attorney General John Ashcroft and Utah Republican Sen. Orrin Hatch have their way, the situation may soon get much worse. Ashcroft's Justice Department is apparently eyeing legislation -- dubbed PATRIOT Act II -- that would further expand the administration's powers to act in unilateral silence. Meanwhile, Hatch is working to make PATRIOT Act I permanent now -- it is currently set to expire in 2005 -- before Congress can consider whether the Justice Department is making appropriate use of the broad surveillance powers provided by it.
Steven Aftergood, a researcher who monitors government secrecy issues for the Federation of American Scientists, calls Hatch's proposal a "direct assault" on Congress' ability to monitor the Justice Department. "If it goes through, we might as well go home," he told Salon. "The administration will have whatever authority it wants, and there won't be any separation of powers at all."
It is a dire prediction. But in some ways, it has already come true. Congressional aides complain that the Justice Department has denied Congress the information it needs to serve as a meaningful check on possible executive branch abuses, and the federal courts are increasingly refusing to involve themselves in cases in which the administration's policies -- on secrecy, on terror or on executive authority more generally -- have been questioned. As a result, the executive branch is increasingly free to act on its own, without the checks and balances typically imposed by a separated government.
The White House denies that it is operating under any unnecessary cover of darkness. At a conference of newspaper editors earlier this month, Vice President Dick Cheney categorically rejected the perception that the administration has become a "foe of openness," and he said that the Pentagon's program of "embedding" reporters with troops in Iraq proves that the administration is committed "to the free flow of information about very important events."
But just as free-roaming reporters in Iraq have now begun to show that their embedded colleagues saw only the stories the Pentagon wanted them to see, there is increasing concern at home that the White House feels free to tell Congress, the courts and the public only as much as it cares to reveal.
"On a lot of these kinds of questions, the responses are, 'We can't tell you,' or 'We're not going to tell you,' and on some it's, 'We don't keep that kind of information,'" said Lee Tien, a senior staff attorney for the Electronic Frontier Foundation. "That's what I find offensive. They say, 'We can't give you a full picture, but we can tell you that we thwarted a kidnapping or caught a child pornographer.' So they get to spin it, and you hear the stuff they'd like to tell you about, but you never hear anything about the rest."
Six weeks after Sept. 11, Congress enacted the USA-PATRIOT Act. Among other things, the act makes it possible for the FBI to obtain personal information about U.S. citizens -- logs of their Internet activities, the books they check out from the library, their bank transactions and their phone calls -- without any evidence that the subject of such information is involved in any way in any criminal activity. In some cases, the act allows the FBI to obtain such information based solely on its own decision to do so, without first seeking a warrant from a federal court. The PATRIOT Act also dramatically increases the circumstances under which federal law enforcement officers can conduct wiretaps and secret searches under the Foreign Intelligence Surveillance Act.
What the PATRIOT Act does not do is impose any requirement that the administration inform Congress -- or anyone else -- as to how these new powers are being used. In typical legislation involving criminal law, that might not have been a problem. As the EFF's Tien explained, law enforcement officers involved in criminal investigations have a strong incentive to police themselves when it comes to civil liberties: If they conduct searches or make arrests in violation of constitutional safeguards, the evidence they need for a conviction may not be admissible at trial. But in wide-ranging and open-ended anti-terror investigations, there frequently is no such check. If agents violate the privacy rights of a library patron or conduct unlawful surveillance of an innocent citizen, there may be no ramifications because there likely would be no trial in which such evidence would come to light -- and possibly be suppressed.
Thus, Tien said, abuses are more likely in such investigations. Yet Congress "didn't change the reporting requirements or enhance them in any way" when it adopted the USA-PATRIOT Act. "And then when members of Congress began to think, 'What do we know about what the White House or DOJ is doing?' they realized that they didn't know a whole hell of a lot."
So in 2002, Congress began to ask questions. But congressional aides say that the Justice Department has been so tight-lipped about its post-9/11 actions that Congress still lacks basic information about the use and usefulness of the PATRIOT Act powers. And without such information, they say, Congress can neither monitor the department effectively nor make intelligent decisions about whether the PATRIOT Act strikes an appropriate balance between preventing terrorist acts and protecting civil liberties.
An aide to one Democratic member of the Senate Judiciary Committee told Salon that the committee has had "extreme difficulty" in learning how the Justice Department is implementing the PATRIOT Act. Aides on the Republican side of the aisle tell a similar story. Ask them about the administration's responses to Judiciary Committee queries, and you'll hear words like "slow," "recalcitrant, and "a teeth-pulling exercise."
An aide to Iowa Republican Sen. Chuck Grassley said his boss is "frustrated" by the Justice Department's failure to cooperate more fully with the committee. "Sen. Grassley believes that senators, particularly senior senators on committees of jurisdiction, have a right to have reasonable questions answered," the aide said. "Now, sometimes people say, 'Tell me how many grains of sand are on a pyramid.' But 'How often have you used this new power? And what has been the result?' Those are legitimate questions that should be answered."
Some of them haven't been. For example, said Tien, the Justice Department has refused to say how many times it has demanded information from libraries about the books checked out by individual patrons. More generally, the Senate Judiciary Committee has asked the Justice Department numerous times for information about its practices under the PATRIOT Act and the Foreign Intelligence Surveillance Act. Some of those requests have not been answered at all, said the aide to a Democratic member of the committee, while others have been answered only incrementally.
"The curtain came down just after the work on the USA-PATRIOT Act," the aide said. "That's when the unilateralism started, both in the Justice Department and in the administration overall."
While some departments have been more responsive to congressional requests, Senate aides say that many have joined Justice in putting such inquiries on what one Republican Senate aide called "the slow boat to China." He said that administration officials seem surprised and resentful that they are expected to provide any information at all. "They probably figure, 'We've got both houses in our pocket and we don't have to get oversight stuck up our ass,'" he said. "They probably figured they could paint [Vermont Democratic Sen. Patrick] Leahy and [Democratic Rep. John] Conyers as partisan. But there are [Republican members of Congress] who ask questions and expect answers, too." |
