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Jewish World Review Oct. 29, 2002 / 23 Mar-Cheshvan, 5763

Nat Hentoff

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John Ashcroft defines patriotism | At the national United States Attorneys' conference on Oct. 1, John Ashcroft accused his critics of "capitulation before freedom's enemies ... the terrorists." Ashcroft added that those of us who question his methods of fighting terrorism use "disdain and ridicule."

I wonder if Ashcroft had in mind Republican House Majority Leader Dick Armey, who told George Washington University law professor Jeffrey Rosen -- in the Oct. 21 New Republic -- that "the Justice Department ... more than any federal agency, seems to be running amok and out of control. ... This agency right now is the biggest threat to personal liberty in the country."

Or was Ashcroft thinking of Republican conservative Bob Barr, who has also criticized the Justice Department's attacks on civil liberties. Barr told Rosen that, with regard to the USA Patriot Act, "the administration has been resisting any effort to provide information to the judiciary committee detailing how its work is being implemented." The chief obstacle to releasing that information: John Ashcroft.

The attorney general must be relieved that Armey is retiring and libertarian Barr was defeated this year in his campaign for re-election in Georgia. Ashcroft gets much more respectful reactions from Democratic Congressional leaders Tom Daschle and Dick Gephardt, who have been silent on the Justice Department's revisions of the Bill of Rights.

Or maybe the attorney general was thinking of such "capitulationists" as New York University law professor Stephen Schulhofer who -- in the Century Foundation's report, "The Enemy Within, Intelligence Gathering, Law Enforcement and Civil Liberties in the wake of September 11" -- wrote that some of Ashcroft's security measures "compromise important freedoms in ways that previous presidents never attempted, even in the midst of formally declared wars. ... Important individual freedoms have been sacrificed -- often needlessly and unjustifiably."

Among such sacrifices Schulhofer cites are "new powers to conduct undercover infiltration and surveillance of political and religious groups, and increased wiretapping, electronic eavesdropping, and covert acquisition of Internet and e-mail communications, including increased powers to conduct these kinds of surveillance without probable cause or a judicial warrant." And on National Public Radio, retired Army Gen. Wesley Clark -- former commander of Allied forces in Kosovo -- emphasized that this "prolonged struggle against terrorism ... is the kind of war that demands we pay MORE attention to our rights as citizens." Is that "capitulation" to our enemies -- or rather, an endorsement of what the president said on Sept. 12, 2001: "We will not allow this enemy to win the war by changing our way of life or restricting our freedoms."

Supreme Court Justice Thurgood Marshall never capitulated to attempts to diminish the Bill of Rights. In his 1989 dissent, Skinner v. Railway Labor Executives' Association, Marshall, without disdain or ridicule, stated this basic truth of the American experience: "History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases (of Japanese-Americans) ... and the Red Scare and McCarthy-era internal subversion cases ... are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it."

I recently spoke at the annual Connecticut Library Leadership Conference and relayed some advice to the librarians from a reader of Free Inquiry magazine. He suggested that librarians and bookstore owners post this notice to customers and library users: "Section 215 of the USA Patriot Act ... gives the FBI the right to obtain a court order demanding ... any records we have of your transactions at this location. We will be required to give them the requested information, AND WILL BE FORBIDDEN from TELLING YOU OR ANYONE ELSE ABOUT IT."

Most of the sessions at that librarians' conference were about Ashcroft's legislation commanding librarians to provide the FBI with the names of the books that certain borrowers under loose suspicion -- but without probable cause -- of involvement with terrorism asked for. As for the gag order preventing the librarians from telling the press or anyone else of these Orwellian visits or the names of the books, the librarians were still wondering how this could happen in the United States.

Does the attorney general regard librarians voicing such concerns as evidence of "capitulating" to the terrorists? We do have enemies within -- terrorist "sleepers" -- but those of us who dissent from Ashcroft's practices are doing so in the very tradition of the Americanism we are fighting to preserve.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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