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 suddenly discovered that the Bush Administration had hijacked the Constitution with the Patriot Act and the order for military tribunals. Time burst out that "War Is Hell (on Your Civil Liberties)." The New York Times began to run big news stories about John Ashcroft as if he were running an off-the-shelf operation, clandestinely consummating all those dreams of Oliver North back in Reagan time about suspending the Constitution.
In the Washington Post for November 15 Richard Cohen discarded his earlier defenses of Ashcroft and declared the Attorney General to be "the scariest man in government." Five days earlier, a New York Times editorial was particularly incensed about suspension of attorney-client privileges in federal jails, with monitoring of all conversations. For the Hearst papers, Helen Thomas reported on November 17 that Ashcroft "is riding roughshod over individual 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 sudden volley of urgent barks from the dogs of the Fourth Estate, the first yelp came on November 15, from William Safire. In 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 out at "military kangaroo courts" and flayed Bush as a proto-Julius Caesar.
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 his own role in swinging the Senate to Democratic control was vindicated because it had permitted his fellow senator from Vermont, Democrat Patrick Leahy, to battle the White House's increased police powers, as made legal in the terrorism bill.
Speak, memory! It is not as though publication on November 13 of Bush's presidential order on military tribunals 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 Antiterrorism 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 remonstrance from the watchdogs might have provoked resistance in Congress, amended the Patriot bill and warned Bush not to try his luck with military courts, there was mostly silence from the opinion makers, aside from amiable discussions of the propriety of torture. Taken as a whole, the US press did not raise adequate alarm about legislation designed to give the FBI full snoop powers on the Internet; to deny habeas corpus to noncitizens; to expand even further the 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 1978, in the Carter years.
In the run-up to Bush's signing of the Patriot Act on October 25, the editorial columns of the major papers offered only nugatory comment about the dangers of the bill. While not as bad as the silence of the press over the internment of Japanese-Americans after Pearl Harbor, the tepid reaction of the media had disastrous consequences.
It would have taken only a few fierce columns or editorials, such as were profuse after November 13, to have given frightened politicians cover to join the only bold soul in the Senate, Russell Feingold of Wisconsin. 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 New York Times and the Washington Post both editorialized then 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 Feingold, who made a magnificent speech in the Senate the day the bill was signed, citing assaults on liberty going back to the Alien and Sedition Acts of John Adams, the suspension of habeas corpus sanctioned by the Supreme Court during the Civil War, the internments of World War II (along with 110,000 Japanese-Americans there were 11,000 German-Americans and 3,000 Italian-Americans put behind barbed wire), the McCarthyite blacklists 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 significantly curtailed. He flayed the measure as an assault on "the basic rights that make us who we are." It represented "a truly breathtaking 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. Feingold's was the sole vote against the bill in the Senate. Just like Wayne Morse and Ernest Gruening in their lonely opposition to the Gulf of Tonkin Resolution in 1964, Feingold will receive his due and be hailed as a hero by the same people who held their tongue in the crucial hours when a vigilant press could have helped save the day. 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.