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Lost Liberties: Ashcroft and the Assault on Personal Freedom Edited by Cynthia Brown (New Press, 320 pages, $17.95) The War on Our Freedoms: Civil Liberties in an Age of Terrorism Edited by Richard C. Leone and Greg Anrig Jr. (Public Affairs, 317 pages, $15) The USA Patriot Act has become a symbol for public concern about post-Sept. 11 civil liberties. Cities are passing resolutions against it. And Attorney General John Ashcroft feels compelled to travel the country in its defense. As he hits the road to buff up the image of the act, he shouldn’t look for support in America’s bookstores. Lost Liberties and The War on Our Freedoms � two new compilations of essays examining civil liberties since the attacks of Sept. 11 � don’t offer the kind of analysis Ashcroft might want to cite on his roadshow through America. Contributors to Lost Liberties label the Patriot Act “one of the most comprehensive assaults on civil liberties in American history” and accuse Ashcroft of inflicting “tremendous violence on the Bill of Rights.” And that’s just in the first two chapters. From the title page onward, both of these 13-chapter books indict the Bush administration for eroding civil liberties and direct much of their scorn toward the attorney general himself. The charges presented here aren’t new: The administration is accused of spawning more secrecy, less privacy, and a preventive dragnet that ensnared large numbers of immigrants with no connection to terrorism. The only somewhat positive comment about the administration is that current abuses haven’t yet matched past excesses. Ashcroft’s roundup of immigration law violators does not compare with the Japanese-American internment during World War II. Nor is the Patriot Act quite as egregious as the Sedition Act of World War I. Ironically, one of the least threatening of the Patriot Act’s new powers gets the most attention: the government’s ability to find out what books people check out from public libraries. Meanwhile, the removal of the wall between intelligence gathering and criminal prosecutions gets little notice. One reason is that the courts authorized by the Foreign Intelligence Surveillance Act operate in such secrecy. Little is known about the FISA court except that it rejected only five of the 14,000 warrant applications before 2001 and was overruled on its first rejection after the attacks. Now, prosecutors can initiate FISA investigations too. The authors in these volumes write mainly about the potential for abuse rather than actual abuses, which so far have been limited. While the specter of government mining private data to achieve “total information awareness” may loom large, identity theft by a common criminal remains a greater risk to most people. Public outcry helped scale back some of the administration’s most extreme ideas � the Operation TIPS public watch program and John Poindexter’s Total Information Awareness initiative. Congress included sunset clauses in some of the Patriot Act’s most controversial provisions that will expire in 2005. Even Republicans in Congress seem willing to take away some of the powers granted such as “sneak and peek searches.” But as David Cole points out in Lost Liberties, the American public seems far more willing to put up with tactics targeted at those on the margins. There hasn’t exactly been a groundswell of public anger over the detention of a 1,000 people on relatively minor immigration law violations or the detention of American citizens as “enemy combatants.” There has perhaps always been a “depressing inevitability,” as Tanya Coke suggests in Lost Liberties, to the targeting of immigrant groups during national security crises. Still, as Richard Leone writes in the introduction to The War on Our Freedoms, the lack of public debate over these measures and the proper balance between security and liberty is lamentable. Equally troubling is the cloak of secrecy the administration has dropped over its activities � from barring the public from immigration hearings to rolling back the Freedom of Information Act. Some of the new secrecy is justified by national security needs. Much is excessive, however, particularly in the new Department of Homeland Security. And some instances of secrecy related to environmental and health records are downright dangerous to the public’s health. Perhaps retired New York Times columnist Anthony Lewis sums it up best in The War on Our Freedoms by quoting former Supreme Court Justice Robert Jackson, who suggested that secret evidence “provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.” Today’s Supreme Court has yet to weigh in on the terror investigations. A handful of federal district judges have issued decisions rebuking the administration. But in recent months, the Justice Department has scored victory after victory in the U.S. Courts of Appeal. SHOPPING SPREE Part of this success is a result of savvy forum shopping. It’s no accident that Zacarias Moussaoui and John Walker Lindh were both indicted in Eastern Virginia’s “Rocket Docket” within the friendly confines of the 4th Circuit. Nor is it a coincidence that American citizens classified as “enemy combatants” are sitting in military brigs within the 4th Circuit’s jurisdiction. And by picking a patch of Cuba as the site to detain terror suspects, the Justice Department all but assured that no federal court would take up a habeas petition. Perhaps courts’ deference to the administration may lessen as the indefinite war on terror drags on. Ironically, the most devastating critique thus far came from the Justice Department itself, albeit from the independent Office of the Inspector General. (Unfortunately both books went to press too early to include reference to the IG’s report.) The report suggested that the Justice Department failed to distinguish between those detained due to terror-related leads and those arrested by “virtue of chance encounters” with law enforcement. More troubling: Inspector General Glenn Fine found INS lawyers had warned that delays in releases were creating an “increased risk of litigation.” When detainees did challenge their detentions, the Justice Department avoided addressing the legal validity of its policies by quickly obtaining FBI clearance for their release. The Justice Department’s initial response to the IG report was nothing but defensive. And a certain self-righteousness was evident when Ashcroft testified before Congress that those who “scare peace-loving people with phantoms of lost liberty” are aiding terrorists. He was back at it in July when he suggested that scaling back the Patriot Act “would senselessly imperil American lives and American liberty, and ignore the lessons of Sept. 11.” Beyond just rhetoric, there are more serious examples of ways in which this Justice Department feels it never has to change course, even when directed to do so by Congress or the courts: The prosecution of an American citizen not panning out in criminal court? Shift the defendant to a military brig and reclassify him as an enemy combatant. Congressional leaders request information about the implementation of the Patriot Act? Stonewall them. Lost Liberties illuminates such legimate concerns, but its tone is often shrill. The contributors are mostly public interest lawyers who have challenged many of the post-Sept. 11 measures such as Kate Martin of the Center for National Security Studies and ACLU attorney Anthony Romero. Curiously, they fail to incorporate into the book the emotional power of their own experiences on the front lines. Some of their assertions are unsupported, as when Romero suggests that Ashcroft’s remarks have so poisoned the political climate that tenured professors with contacts in the Arab world stand to lose their jobs. Toward the end of the book any link to civil liberties breaks down, and its pages read like a compilation of liberal gripes. Authors seem more interested in criticizing the Bush environmental and foreign policy records than linking the subjects to civil liberties. There’s nothing wrong with loading up a book with polemical attacks, but at least present the other side’s position before you trash it. The War on Our Freedoms, with contributions from an all-star team of historians and journalists, takes a more balanced approach. Historian Alan Brinkley suggests the modern notion of civil liberties wasn’t born until World War I and that “society’s definition of civil liberties is fluid and constantly changing.” In a hopeful note, he indicates every succeeding period of abridgment was followed by a strengthening of civil liberties. Lewis is the sole contributor to either volume who gives voice to the administration’s position in a brief question-and-answer session with Viet Dinh, the former assistant attorney general who has returned to teaching at Georgetown. Dinh himself is preparing a book defending the administration’s record. Like Lost Liberties, The War on Our Freedoms too goes off on tangents � though better-written ones. E.J. Dionne offers a great critique of the Bush agenda and the administration’s politicization of security, what he calls a “marriage of patriotism and partisanship.” If there’s a lesson in these books for Ashcroft, it might be that defending the administration’s record on civil liberties might best be left to someone less polarizing. Seth Stern is a staff writer for The Christian Science Monitor.

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