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In Defense of Civil Liberties


New York Times Editorial
September 20, 2004

The debate over intelligence reform, as important as it is, has been obscuring a vital discussion about another recommendation by the bipartisan commission on the 9/11 attacks. The panel's report noted that no one in the government has the job of safeguarding civil liberties as the government seeks expanded powers to combat terrorism. It proposed assigning that critical task to a special board.

President Bush has already staked out his position by creating, by executive decree, a caricature of the 9/11 commission's proposed board. The Senate is considering a much better, bipartisan measure. The issue needs serious debate before the election.

It ought to have been a shock to hear the commission suggest that we need a new agency to do what the courts, Congress and the attorney general are supposed to do, in theory at least. But the Justice Department has been steadily abandoning its responsibility to protect civil liberties, which now hardly seems to be in Attorney General John Ashcroft's job description at all. A polarized Congress, wary of being portrayed as soft on terrorism, is not an adequate defense for our constitutional rights.

This has become an even more pressing problem since Sept. 11, 2001, when Americans realized that they would have to tolerate tighter security in public places, and federal law enforcement agencies required some expanded powers to effectively root out and destroy terrorist plots. So, pragmatically, it's hard to simply dismiss the idea of Congress creating a special agency to focus on civil liberties - especially given this administration's record on the issue.

Mr. Bush has tried to sweep aside the Constitution by declaring selected American citizens to be unlawful combatants and jailing them indefinitely; Mr. Ashcroft's Justice Department produced the appalling memo justifying the torture of prisoners. It was also responsible for, among other things, jailing a lawyer from Portland, Ore., on charges of international terrorism based on a misreading of his fingerprints and, apparently, on his religious beliefs. The administration set up a detention camp in Guantánamo Bay where minimal standards of justice have been suspended or eliminated altogether.

But we don't want to trade a situation in which no one gives priority to safeguarding our civil liberties for one in which a Potemkin review board gives reflexive approval to government actions that unreasonably encroach on constitutional liberties. That is the danger with Mr. Bush's approach. His board has no authority to speak of. It cannot initiate investigations but has to wait for a cabinet official to request a review of his or her own actions. Most glaring, its members are currently serving presidential appointees who often run the operations that the board is most likely to review - including, incredibly, the Central Intelligence Agency, which has no legal domestic law enforcement function but does have a strong interest in smoothing the way for its intelligence gathering. The board - which has already had its first meeting, behind closed doors - has no subpoena power, no mission to conduct regular reviews of laws and no mandate to hold public hearings or issue public reports.

A bipartisan bill submitted by Senators John McCain and Joseph Lieberman, by contrast, would create a panel of five people from outside the government, appointed by the president and subject to Senate approval. That's a much better approach, but the partisan balance should be even, as is now required on some regulatory agencies. The McCain-Lieberman board would be empowered to start its own investigations, require federal officials to testify and provide documents, and issue subpoenas. It would review proposed legislation, regulations and policies, as well as their implementation; receive regular reports from government agencies; and report twice yearly to Congress and the president. The bill also requires public hearings and reports.

The panel would advise Congress on whether "to retain or enhance a particular governmental power," like provisions of the Patriot Act, judging whether those powers had actually improved national security and were adequately supervised. Mr. McCain and Mr. Lieberman were too timid here. The review should include the degree to which civil liberties are in fact being breached and whether such breaches are really essential to protect national security and public safety. The law also should include the 9/11 commission's notion that the burden of proof is on the government.

Congress cannot order Mr. Bush to disband his new board. Nor can it responsibly shirk its own duties of oversight. But it can respond to Mr. Bush's pre-emptive move by creating a board with independent members and real authority. We hope that the public pressure would then be great enough for Mr. Bush to reverse field yet again on the 9/11 report and let the members of his review board go back to their day jobs.

 
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