The Press and the USA Patriot Act
Where Were They When It Counted?
By Alexander Cockburn and Jeffrey St. Clair

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 in 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 
1000 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 
bill, 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 us 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.