HENTOFF: Who is under Bush's watch?

• Article
• Comments ()
• Click-2-Listen
• Videos

By Nat Hentoff

OP-ED:

As the president says, we have not had another September 11 under his watch and he wants his successors to be able to keep the national security powers he has accumulated since then. Although there are constitutional experts who claim these expanded powers are unprecedented in American history, Attorney General Michael Mukasey agrees with President Bush, and his chief enabler in preserving those powers in surveilling Americans in our daily lives.

Aware of Mr. Mukasey's plan for new FBI guidelines that could begin national security and criminal investigations of racial and ethnic groups without any evidence of wrongdoing, the heads of the Senate Judiciary Committee - chairman Patrick Leahy and ranking member Arlen Specter - have asked the attorney general to delay the implementation of these echoes of the regime of J. Edgar Hoover until Congress is able to review these changes. Mr. Mukasey agreed but wants the expanded surveillance of us to begin Oct. 1.

And four Democratic senators - with the conspicuous and lamentable absence of their leader, Harry Reid - have also reminded the attorney general of his oath to protect the Constitution. Democrats Russ Feingold of Wisconsin, Richard Durbin of Illinois, Edward Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island warn not only Mr. Mukasey but the rest of us that the new rules "might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities."

As Lara Jakes Jordan of the Associated Press pointed out: "The new policy, law enforcement officials said, would let agents open preliminary terrorism investigations after mining public records and intelligence (including tips from informants) to build a profile of traits that, taken together, were deemed suspicious." There would be no evidence of criminal activity.

Such "traits" could include a person's race or ethnicity.

Michael German, a former FBI agent for 16 years and now a policy counsel for the American Civil Liberties Union, warns that if Mr. Mukasey is allowed to go ahead, he will be undermining the restrictions placed on the FBI after the omnivorous dragnet approach of Hoover's COINTELPRO (domestic Counter-Intelligence Program) during the late 1950s and early 1960s.

Says German of Mr. Mukasey: "He talks about 'arbitrary or irrelevant differences between criminal and national security investigations, but these were corrections originally designed to prevent the type of overreach the FBI engaged in for years."

Long after those years, I obtained my FBI file through the Freedom of Information Act and found I had been "a person of interest" to the COINTELPRO agents even though I was on record in books and articles as a passionate anti-communist since reading, when I was 15, Arthur Koestler's "Darkness at Noon" about Stalin's ceaseless harvesting of suspicious traits. And I was just one of millions of innocent Americans looked into by the FBI as Hoover promised "an FBI agent behind every mailbox."

In his zeal to preserve and even enlarge Mr. Bush's legacy, his attorney general, Mr. Mukasey - as reported in the Aug. 16 Washington Post - has not only further unleashed the FBI but has also "proposed a new domestic-spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years." This would be the first change since 1993.

As the plan was published for public comment on July 31, the 18,000 state and local police agencies annually receiving around $1.6 billion in federal grants would, like the FBI, not be hampered by due diligence to the Fourth Amendment's requirements that they must first begin to search and seize traces of our activities and beliefs only upon "probable cause" that we are - or have been or plan to be - involved in criminal actions. But now, under the nation's chief law enforcement officer, these state and local police will need only a suspicion that we are somehow involved in terrorism or providing "material support" to terrorism.

Already a well-worn part of the Justice Department's arsenal against terrorism, "material support" can mean sending a check to a charitable organization that, wholly unknown to the giver, provides funds to a group later listed by the government as a terrorist group.

The Fourth Amendment, contrary to Messrs. Bush and Mukasey, mandates that state and local police, as well as the FBI, "particularly describe the place to be searched, and the persons or things to be seized" before an American can be stacked into a data base without probable cause of criminal activity.

But this administration, so intent on leaving for the future its parallel legal system, has long believed it has "inherent constitutional authority" to put such technicalities as the Fourth Amendment aside.

As in the COINTELPRO years, if Messrs. Bush and Mukasey succeed, state and local police and the FBI will henceforth increase their infiltration into various organizations that object to administration policies as well as keep an unsleeping eye on various individuals with suspicious traits.

On Sept. 17, the occasionally independent FBI Director Robert Mueller will testify at an oversight hearing before the Senate Judiciary Committee. He will have a patriotic opportunity to insist that Messrs. Bush and Mukasey return to American citizens our Bill of Rights - intact. And he should insist that public hearings are held on Mukasey's plan. Meanwhile, as of this writing, I've heard nothing from Messrs. Obama and McCain on the Mukasey revisions of the Bill of Rights. Do they care? Do they remember that Sept. 17 is Constitution Day? Do you?

Nat Hentoff's column for The Washington Times appears on Mondays.