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Jewish World Review Nov. 5, 2001 / 19 Mar-Cheshvan, 5762

Nat Hentoff

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Congress betrays its trust -- Whatever you think of the anti-terrorism bill that Congress has passed at the urging of Attorney General John Ashcroft, it resulted from one of the most undemocratic breakdowns in our history's legislative process. There was scarcely any mention of this matter on television, and it was just a one-day story in most newspapers. But the citizenry should know what was done in its name.

The fault lies not only with the closed-door perpetrators, but also with the members of the Senate and the House -- fully aware of this hijacking of representative democracy -- which voted for this backroom heist (337 to 79 in the House and 96 to l in the Senate).

This is a betrayal of trust by Congress at a time when we are indeed fighting a vicious enemy hiding in many countries, and among us. What we are fighting for, as the president has often said, are the freedoms we represent to a world threatened by fascist terrorists.

Before the entire House and Senate had voted on this anti-terrorism bill, the House Judiciary Committee had resisted the attorney general's demand that his legislation be passed within one week. Insisting on a more careful response was a remarkably bipartisan coalition -- including liberals Barney Frank and Maxine Waters and conservatives Bob Barr and House Majority Leader Dick Armey.

After actual deliberation, the House Judiciary Committee -- by a 36 to 0 vote -- had passed a version of Ashcroft's proposal that restored some elements of the Bill of Rights. Radical expansion of electronic surveillance was curbed, and the government was prevented from conducting secret searches without any timely notice of what was taken.

But late at night, behind closed doors, House Speaker Dennis Hastert and other Republican leaders, together with emissaries from the White House, scuttled the Judiciary Committee's bill. On Oct. 12, without most members having had time to even read the new 175-page bill, the House passed it overwhelmingly. David Dreier, chairman of the Committee on Rules, smoothly said it wasn't the first time a bill had been passed that the members had not read. He did not tell us this with any note of disapproval.

Democrat David Obey of Wisconsin, less of a euphemist than Congressman Dreir, accurately called this slick maneuver "a backroom quick fix." He added: "Why should we care? It's only the Constitution."

Barney Frank was not engaging in hyperbole when he charged that this subversion of representative government was "the least democratic process for debating questions fundamental to democracy I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process, comes before us immune from amendment."

But House Judiciary Committee Chairman James Sensenbrenner -- who had initially agreed that the House Judiciary Committee had acted responsibly by curbing the excessive governmental powers demanded by the attorney general -- told the nation that this new, steamrolled bill did not diminish the freedoms of "innocent citizens."

Considering the broad definition of terrorism in the bill, there is a serious question as to whether the presumption of innocence holds. What does "influence the policy of government by intimidation" mean? Also late at night, behind closed doors, Senate leaders and members of the administration put together a similar scattershot anti-terrorism bill that was hastily and obediently passed by a vote of 96 to 1. The sole dissenter, defending the Bill of Rights, was Russell Feingold of Wisconsin.

As Sen. Feingold said while his colleagues marched in lockstep: "It is crucial that civil liberties in this country be preserved. Otherwise, I'm afraid terror will win this battle without firing a shot."

The combined House and Senate bills widen and deepen electronic surveillance of anyone involved in an investigation; allow the FBI and the CIA to share information, thereby expanding the CIA power over Americans at home; and allow previously secret grand jury proceedings to be shared by law enforcement and intelligence agencies without a court order. There's more, including FBI secret searches without timely notice of what was taken, as I'll indicate in a future column. But the crucial question is: how many Americans care what is happening to their liberties? Does the Constitution matter?

The new anti-terrorism law, signed by the president, is the worst attack in the Bill of Rights since World War I.

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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