Where Were They When It Counted?

The weekend before Thanksgiving, as the Taliban fled into the Hindu Kush and America’s children flocked to Harry Potter, the nation’s opinion formers discovered that the Bush administration had hijacked the Constitution with the Patriot Act and the military tribunals. Time magazine burst out that “war is hell on your civil liberties.” The New York Times suddenly began to run big news stories about John Ashcroft as if he was running an off-the shelf operation, clandestinely consummating all those dreams of Oliver North back in Reagan time about suspending the Constitution.

On November 15 the Washington Post’s Richard Cohen discarded his earlier defenses of Ashcroft, and declared the US attorney general to be “the scariest man in government.” Five days earlier, The New York Times editorial was particularly incensed about suspension of client attorney privileges federal jails, with monitoring of all conversations. For the Hearst papers Helen Thomas reported on November 17 that Attorney General Ashcroft “is riding roughshod over the Bill of Rights and cited Ben Franklin to the effect that “if we give up our essential rights for some security, we are in danger of losing both.”

In this outburst of urgent barks from the watchdogs of the fourth estate, the first yelp came on November 15, from William Safire. In a fine fury Safire burst out in his first paragraph that “Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power.” Safire lashed at “military kangaroo courts” and flayed Bush as a proto-Julius Caesar.

On the same day, November 15, from Britain, whose traditionally appalling emergency laws are now being rendered even more faithful to the vicious tradition of the Star Chamber, the Economist chimed in that Ashcroft’s new laws and DoJ rules are “drastic,” “unnecessary” and “not the way to fight terrorism.” Infringements of civil rights, the Economist declared, “if genuinely required, should be open to scrutiny and considered a painful sacrifice, or a purely tactical retreat, not as the mere brushing aside of irritating legal technicalities. Those who criticized such measures should be given a careful hearing, even if their views must sometimes be overridden.”

Even mainstream politicians began to wail about the theft of liberty. Vermont’s independent senator Jim Jeffords proclaimed on November 19 that “I am very concerned about my good friend John Ashcroft. Having 1,000 people locked up with no right to habeas corpus is a deep concern.” Jeffords said that he felt that his own role in swinging the Senate to Democratic control was particularly vindicated because it had permitted his fellow senator from Vermont, Democrat Patrick Leahy, to battle the White House’s increase of police powers, as made legal in the Terrorism bill.

Speak memory! It was not as though publication on November 13 of Bush’s presidential order on military courts for Al Qaeda members and sympathizers launched the onslaught on civil liberties. Recall that the terrorism bill was sent to Congress on September 19. Nor were the contents of that proposed legislation unfamiliar since in large part they had been offered by the Clinton administration as portions of the Counter-Terrorism and Effective Death Penalty Act of 1996. Well before the end of September Ashcroft’s proposals to trash the Bill of Rights were available for inspection and debate.

At the time when it counted, when a volley of barks from the watchdogs might have provoked resistance in Congress to the Patriot bill and warned Bush not to try his luck with military tribunals there was mostly decorum from the opinion makers, aside from amiable discussions of the propriety of torture. Taken as a whole, the US press did not raise adequate alarums about legislation that was going to give the FBI full snoop powers on the Internet; to deny habeas corpus to non-citizens; to expand even further warrantless searches unleashed in the Clinton era with new powers given in 1995 to secret courts. These courts operated under the terms of the Foreign Intelligence Surveillance Act passed in the Carter years, in 1978.

In the run-up to Bush’s signing of the USA Patriot Act on October 25, the major papers were spiritless about the provisions in the bill that were horrifying to civil libertarians. It would have only have taken a few fierce columns or editorials, such as were profuse after November 15, to have given frightened politicians cover to join the only bold soul in the US Senate, Russell Feingold of Wisconsin. Now it was Feingold, remember, whose vote back in the spring let Ashcroft’s nomination out of the Judiciary Committee, at a time when most of his Democratic colleagues were roaring to the news cameras about Ashcroft’s racism and contempt for due process. The Times and the Post both editorialized against Ashcroft’s nomination.

But then, when the rubber met the road, and Ashcroft sent up the Patriot bill, which vindicated every dire prediction of the spring, all fell silent except for Feingold, who made a magnificent speech in the US Senate on October 25, citing assaults on liberty going back to the Alien and Sedition Acts of John Adams, the suspension of habeas corpus sanctioned by the US Supreme Court in World War One, the internments of World War Two (along with 110,00 Japanese Americans there were 11,000 German Americans and 3,000 Italian Americans put behind barbed wire), the McCarthyite black lists of the 1950s and the spying on antiwar protesters in the 1960s. Under the terms of the hill, Feingold warned, the Fourth Amendment as it applies to electronic communications, would be effectively eliminated. He flayed the Patriot bill as an assault on “the basic rights that make as who we are.” It represented, he warned, “a truly breath-taking expansion of police power.”

Feingold was trying to win time for challenges in Congress to specific provisions in Ashcroft’s bill. Those were the days in which sustained uproar from Safire or Lewis or kindred commentators would have made a difference. So the USA Patriot Act passed into law and Feingold’s was the sole vote against it in the Senate. Just like Wayne Morse and Ernest Gruening in their lonely opposition to the Gulf of Tonkin resolution in 1964 he’ll receive his due, and be hailed as a hero by the same people who held their tongue in the crucial hours. Instead, as Murray Kempton used to say of editorial writers, they waited till after the battle to come down from the hills to shoot the wounded.