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Goose-Stepping to Security

By Dustin A. Lewis and Brian J. Wong

Today, unfortunately, we are forced to acknowledge what we have been fearing: the present administration’s continued and calculated willingness to perpetuate a climate of fear in order to maneuver its agenda through a compliant Congress. Sixteen months ago, the USA PATRIOT Act was passed in the fear-laden aftermath of the Sept. 11 terrorist attacks. It might have been hoped that this was merely the unreflective response of a shocked government in a time of crisis. Yet, in the last month, another tool used in this fight against Americans’ rights has surfaced—a bill that intensifies the original PATRIOT Act by further curbing constitutional liberties and dismantling an already weakened framework of checks and balances.

The Department of Justice prepared the Domestic Security Enhancement Act of 2003 in unseemly and undemocratic secrecy. At first denying the existence of the bill in response to direct inquiries from both the House and Senate Judiciary committees, the department was then confronted with a copy of the bill leaked to the Center for Public Integrity. Responding with evasive sophistry, the Justice Department claimed that the changes were only being discussed at a staff level, despite the fact that Vice President Cheney and House Speaker Dennis Hastert had reportedly seen a draft of the bill far in advance.

It is unconscionable and unprecedented for an administration to be so wedded to secrecy and so entirely scornful of the role of public discussion. The administration, instead, will force Congress to choose between two unattractive options: being named vulnerable to the charge of indifference to national security or meekly acquiescing to the administration’s latest assault on civil liberties.

Worse than the way in which the act was drafted are the unnecessary encroachments upon civil liberties that citizens and non-citizens would suffer should the bill be passed into law. Personal security, for one, would be greatly diminished. Without either court order or consent, innocent Americans could have their genetic information sampled and catalogued. Further, a new category of governmental spying—“domestic security surveillance”—would be created, permitting electronic eavesdropping of exclusively domestic activity under standards looser than those used for ordinary criminal surveillance. Americans would even have an incentive to spy on one another, since the bill grants immunity to businesses that provide information in terrorism investigations—no matter if the business cultivates such information with a concern for its employees’ privacy.

The bill would also increase governmental secrecy and thereby reduce public accountability. For example, secret arrests in certain cases, such as material witness warrants, would be authorized, even when the detained person is not criminally charged. The right to a fair trial would be harmed, too, since defense attorneys would be limited in challenging secret evidence in criminal cases.

More troubling, however, is how the bill undermines fundamental constitutional rights of Americans by using vague and overbroad definitions of “terrorism” and “terrorist organization”—terms capriciously defined by the Attorney General. Under PATRIOT II, native-born Americans are at risk of having their citizenship stripped if they provide “material support” to so-labeled “terrorist” organizations, regardless if the citizen is involved only in lawful activities. There is no governmental check set up to oversee such decisions either, leaving enforcement of the bill solely up to the Ashcroft and his Justice Department cronies. The severity of this provision is extreme: any one of us, citizens and non-citizens alike, could just disappear. And the public would have no recourse to find out who has been detained and for how long they will continue to be held in secret.

Lastly, the bill would abolish fair hearings for lawful permanent residents convicted of minor offenses. In doing so, the government would utilize a retroactive “expedited removal” procedure and, most egregiously, prevent any judicial scrutiny by exempting such cases from habeas corpus review—note that no one has been deprived of habeus corpus by Congress since the Civil War.

Legislation with such momentous consequences should not be drafted in secrecy. The administration makes a mockery of traditions of public discourse and attempts to circumvent the decision-making role of Congress in doing so. The cynical might suspect the administration of waiting for an opportune time—a war with Iraq, perhaps?—to spring PATRIOT II onto a public clamoring for safety and receptive to its siren song of security at any price. Were there less time for measured debate and more pressing calls for action, such a maneuver might well have succeeded. But now is not such a time. The provisions of PATRIOT II, so fortuitously brought to light, must now be carefully scrutinized. Our desire for security must be tempered by a respect for the constitutional norms of a liberal democracy.

Dustin A. Lewis ’04, a physics concentrator, and Brian I. Wong ’04, a history concentrator, live in Lowell House. They are officers of the Harvard Civil Liberties Union.

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