As the Taliban were retreating under the combined assault of opposition forces, it was ever more evident that the Bush Administration had undertaken an assault of its own, on the Bill of Rights, that is likely to outlast the war. The troubling news of an executive order quietly issued on October 26 by Attorney General Ashcroft that would eliminate attorney-client confidentiality for terrorist suspects was trumped only days later by a sweeping presidential directive allowing closed-door military trials for noncitizens charged with terrorism either abroad or at home. In language of chilling breadth, the order authorizes drumhead tribunals with few rights for the accused, imprisonment and death sentences–not only for present or former members of Al Qaeda but for any noncitizen accused of aiding or abetting "acts of international terrorism, or acts in preparation therefore that have caused, threaten to cause…injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy." The order is being sold as an expedient means of settling affairs with Osama bin Laden should he be pulled from an Afghan cave, but in language and design it completely removes from the protective penumbra of the Constitution all noncitizens, including those among the more than 1,000 people detained in the United States in the post-September 11 dragnet. And given Ashcroft's announcement that the Justice Department intends to question more than 5,000 foreign-born men who have legally entered the country since January 1, 2000, that number may well grow.
These new measures would be worrisome enough under any circumstances, but their real danger comes from the context of other powers granted the Administration by Congress or seized by presidential fiat in recent weeks–most often at the expense of courts or the press, the usual avenues for scrutiny. The USA PATRIOT Act removed layers of judicial review from wiretaps, expanded the authority of government agents for black-bag jobs and gave federal prosecutors unprecedented access to previously secret grand jury investigations. Then there is USA PATRIOT's broad definition of terrorism, which, as Nadine Strossen, president of the ACLU, points out, is expansive enough to permit the Justice Department to go after activists and dissenting editorialists on subjects as diverse as the World Trade Organization and Vieques. Add to the mix Ashcroft's gutting of the Freedom of Information Act, Bush's removal of former Presidents' papers from the public domain and the Administration's general hostility to press inquiry, and a picture emerges of an Administration with a contempt for basic American civil liberties and the rule of law.
Bush and Ashcroft know these are emotional times. The shock of September 11 was reinforced first by the anthrax scare, then by the crash on November 11 of an American Airlines jet bound for the Dominican Republic–a crash apparently unrelated to terrorism but still stirring another wave of public anxiety. Repeated trauma plays on the collective nervous system of the nation, all the more so with the FBI at apparent dead ends in the Al Qaeda and anthrax investigations. But the very power of those emotions makes more dangerous the stripping away of constitutional review and offers more reason to resist the illusory and exploitative quick-fix represented by the Administration's assault on civil liberties.