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Jewish World Review May 8, 2003 / 6 Iyar, 5763

Nat Hentoff

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Protecting Congress, and us, from John Ashcroft | No other national administration, in my more than 40 years of covering the state of the Constitution's health, has more persistently protected itself from scrutiny -- and public oversight -- than George W. Bush's executive branch and, particularly, his Justice Department.

At the First Amendment Forum's National Freedom of Information Day conference on March 14, Pulitzer Prize-winning reporter Jack Nelson, retired Washington bureau chief of the Los Angeles Times, said: "No president since I've been a reporter has so tried to change the very structure of government to foster secrecy."

It was only after an understandably anonymous whistleblower in the Justice Department leaked the 86-page draft of John Ashcroft's proposed USA Patriot Act II to Charles Lewis of the Committee on Public Integrity that Congress -- and the rest of the citizenry -- learned about plans to: specifically authorize secret arrests for the first time in our history; collect and maintain DNA samples of anyone "suspected" of some kind of association with designated terrorist groups; and strip Americans of citizenship for "supporting" such groups, even if they had no idea of their "terrorist" bent.

Three days after the leak, Sen. Patrick Leahy of Vermont, ranking Democratic member of the Judiciary Committee, said: "For months, and as recently as just last week, Justice Department officials have denied to members of the Judiciary Committee that they were drafting another anti-terrorism package."

On both sides of the congressional aisle, there is resentment of this secrecy in the imperious Justice Department. Despite this, Ashcroft is trying to further insulate himself.

The Justice Department's Office of Legislative Affairs has, by order of the attorney general, instructed all members of the Justice Department to inform that office "ahead of time and as soon as possible" before they participate in any briefings on Capitol Hill or engage in "substantive conversations" with members of Congress or their staff on Capitol Hill.

Every Justice Department employee is to be tracked to make sure -- said the directive -- "that the Department speaks with one voice on Capitol Hill. ... Please let us know when you receive a phone call from, or plan to place a call, to House and Senate staff and members of Congress."

"Moreover," the memorandum adds, "in almost all cases ... we will accompany you to briefings." (In Iraq, before the war, this form of government supervision was exercised by "minders.")

Leahy said that "if this (tracking) was to facilitate answers (to Congress), that would be one thing, but the administration's overwhelming impulse has been to limit the flow of information, and that has made congressional oversight of this Justice Department a never-ending ordeal."

Republican Sen. Charles Grassley of Iowa, called the directive "an attempt to muzzle whistleblowers," saying, on Fox News, that "we are all working for the American people to have maximum communication among the branches of government. This is an attempt to control information. We want to make sure that what we pass in Congress works the way we wanted it to, and that the money is spent the way we intended. We need a maximum flow of information to make the separation of powers work."

Can you imagine what would happen to a member of the Justice Department who -- on seeing particularly radical revisions of the Bill of Rights in a draft of Patriot Act III -- tells the Justice's Office of Legal Affairs that he or she, in conscience, feels bound to tell Congress of this Ashcroft plan?

The tracking memorandum is all the more reason for Congress to act on at least Grassley/Leahy FBI Reform Act before there is any other needed legislation to protect not only FBI agents in the Justice Department, but all the other Justice employees, from retaliation when they consider it essential for Congress to exercise its constitutional right to oversee the department.

Among the reforms in the Grassley/Leahy Act is the strengthening of whistleblower protections for FBI employees. Leahy points out that "the FBI is currently exempted from the Whistleblower Protection Act, and its employees are only protected by internal Department of Justice regulations."

For example, when Minneapolis Field Office Agent Coleen Rowley wrote her whistleblowing letter and then testified famously in the June 6, 2002, Judiciary Committee Oversight hearing, she was not protected under current FBI regulations, and she certainly did not inform the Justice Department before her whistleblowing letter.

I hope Leahy and Grassley are not the only members of Congress who reject the Ashcroft rule that any member of the Justice Department must be accompanied by a "minder" when communicating with members of Congress or their staff -- as well as having to get permission to even go to Capitol Hill.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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