Bill of Rights Burning YES, Flag Burning NO
The Road to Dictatorship


Radical in the White House
by Marc Ash

George W. Bush has embarked on perhaps the most radical course of any president in US history. Without consulting or even informing Congress, Mr. Bush this week terminated the landmark 1972 Antiballistic Missile Treaty that has been the cornerstone of global nuclear arms control for three decades. And that was just for openers. While the entire country was obediently watching the Osama bin Laden video Mr. Bush was quietly invoking for only the third time in U.S. history Powers of Executive Privilege.

Surprised? Don't be. Amidst the chaos, destruction and distraction of the past year Mr. Bush has set about, by "whatever means necessary," reshaping America to conform to a vision that is -- his to know -- and ours to find out. A fundamental redefinition of the entire U.S. tax structure, fast track authority to unilaterally formulate U.S. trade agreements world-wide, plans to privatize social security, a sweeping overhaul of the entire U.S. justice system... and this is only the ninth month.

Any one of these social and political developments in years gone by would have set off a whirlwind of controversy. Today, while TV broadcast news keeps the nation transfixed on the hunt for bin Laden, Mr. Bush is presiding over a truly radical 180 degree reversal of America's fortune. In little more than a year we have gone from enjoying peace and the most prosperous economy in our history, to a nation plunged into war, recession and fear. This is a nation being transformed before our very eyes.

Democratic resistance to the Bush agenda is not surprising, but to put into perspective the enormity of these events, consider the reaction from many prominent republicans: Dan Burton, the Republican Chairman of the powerful House Ways and Means Committee, said in reaction to Mr. Bush's invocation of Executive Privilege, "This is not a monarchy." Arch Republican conservative New York Times columnist William Safire titled his essay on the subject of Mr. Bush's order authorizing secret military tribunals: "Seizing Dictatorial Power." Senate Republican Stalwart Arlen Specter titled his Op-Ed in the New York times; "Questioning the President's Authority."

Questioning the President's Authority indeed, now might be a very good time -- while the opportunity still exists.


The President's Papers Are the People's Business
By Steven L. Hensen - Sunday, December 16, 2001

How can a democratic people have confidence in elected officials who hide the records of their actions from public view?

On Nov. 1, with no announcement, President Bush signed Executive Order 13233, overriding the 1978 Presidential Records Act, which provides that a president's papers will be made available to the public 12 years after he leaves office. Bush's new order gives the White House, as well as former presidents, the right to veto this release of documents, thereby taking the responsibility for administering presidential papers away from the archivist of the United States. By forcing citizens to go to court to obtain the right to view an administration's records,the order effectively blocks access to information that enables Americans to hold our presidents accountable for their actions.

Almost immediately after Bush signed the order, a remarkably bipartisan group of Republicans and Democrats, liberals and conservatives, expressed everything from dismay to outrage. In addition, a group including historians, journalists and civic activists filed suit to block implementation of this order.

In the middle of the fray are professional archivists. Those of us who labor in the nation's archives are entrusted with ensuring that citizens and scholars have access to the records of human society and culture,as well as to the important records of our government. The guarantee of such access is a cornerstone of the Constitution and of democracy in general. As the current president of North America's largest archival professional society, I speak for many of my colleagues when I say that the White House is on the wrong side of this battle.

Bush's executive order is titled "Further Implementation of the Presidential Records Act." But rather than "implementing" that law, the order abrogates the core principles of the act and violates both its spirit and letter.

The Presidential Records Act was created out of the legal morass surrounding the Watergate scandals and legitimate congressional fears that former president Nixon would never allow public access to the records of his administration. The legislation established once and for all -- or so we thought -- the principle that presidential papers represent the official records of activity by the highest office in our government of, by, and for the people -- and that they therefore belong to the U.S. government and, by extension, its citizens. The act further mandates that management of, custody of and access to such records should be governed on behalf of the nation by the archivist of the United States.

Some of the bases for this law can be found in earlier discussions by scholars and archivists. Julian Boyd, editor of "The Papers of Thomas Jefferson," had made the point as early as 1960 that "the records of the office of the President belong to the people who created that office. They cannot be given away by one who happens to be its incumbent." He also rejected the notion that "the privilege of the President follows a man into retirement as a personal right to be exercised by himself for the duration of his natural life and then to be descendable to his executors and heirs."

In his authoritative 1969 book, "Records of a Nation," the distinguished archivist H.G. Jones noted that, among modern presidents, Franklin D. Roosevelt had clearly established the peoples' claim to ownership of their chief executives' files and had stated that "the prerogative assumed by his predecessors in asserting private title was in fact only a lingering vestige of the attributes of monarchy, not an appropriate or compatible concept of archival policy for the head of a democratic state to adopt."

Executive Order 13233 directly subverts the intent of the Presidential Records Act by placing ultimate responsibility for decisions regarding access to presidential papers not only with President Bush, but with any sitting presidentin the future, as well as every ex-president, and, even further, the family members and heirs of former presidents, apparently withoutlimit.

Administration officials have acknowledged that the new order is intended to prevent the release of records from the Reagan administration, which the White House has been delaying by various means since January. This has led to speculation that the administration is trying to shield members of Bush's own administration, as well as his father, from a variety of uncomfortable revelations, including possible connections to the Iran-contra scandal. But it should be noted that this executive order also fits a pattern suggesting that the Bush administration may be hostile to the basic ideals that the public has a right to know what its elected officials are doing, and that the records of government are in fact owned by the people.

Last January,Bush, as outgoing governor of Texas, shipped his official records to his father's presidential library at Texas A&M University. By doing so, he succeeded in removing his gubernatorial papers not only from the custody of the Texas State Library and Archives, but also, possibly, from the ownership, oversight and right of access of the people of Texas. The Texas archives law does permit the designation of "an institution of higher learning or alternate archival institution" as the repository for gubernatorial records (the records of former governor John Connally, for instance, are at the Lyndon B. Johnson presidential library, and those of Bill Clement are at Texas A&M). But the bill requires that any governor seeking to place his records elsewhere consult fully with the Texas State Library and Archives Commission to develop clear policies regarding processing of and access to the records. While there was some preliminary consultation over Bush's papers, no final agreement was reached. The records were simply packed up and shipped off -- to the great surprise of many, including officials at the Bush presidential library.

Under no circumstance does the Texas bill permit the transfer of the records' "ownership" from the people of Texas to any other entity. The Connally and Clement records, though not technically in the archives, are still administeredaccording to Texas records law. But the confusion likely to reign over the question of who "owns" the Bush gubernatorial records may be sufficient to keep them out of public sight until well after the conclusion of George W.'s presidency. In the meantime, requests from journalists, historians or others to view the documents could be delayed indefinitely, denying the public potentially valuable insight into how Bush's policies as Texas governor on matters from energy to the death penalty may be informing current decisions.

And there's more. On Oct. 16, Attorney General John Ashcroft issued a memorandum telling federal agencies that when they decide to withhold records in response to Freedom of Information (FOIA) requests, they can "be assured" that the Department of Justice will defend their decisions. The memorandum supersedes a 1993 directive by then-Attorney General Janet Reno, directing federal agencies to resolve ambiguous situations in favor of openness. Though Ashcroft's memo suggested that the present reversal on FOIA requests was necessary for protecting "national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy," the fact is that these categories of information are already exempted from release under our freedom of information laws. Like Bush's executive order, Ashcroft's FOIA memorandum has the effect of limiting our ability as citizens to know what our government is doing, and why.

There is lingering uncertainty over the extent to which an executive order can trump or override statutory law. This is a matter Congress will have to decide. So far, Congress has held only one inconclusive hearing on Executive Order 13233.It needs to do far more. Access to the vital historical records of this nation should not be governed by executive will; this is exactly the situation that the existing law was created to prevent. Furthermore, for such access to be curtailed or nullified by an executive process not subject to public or legislative review or scrutiny violates the principles upon which our nation was founded.

Engaged as we currently are in a struggle against terrorism and totalitarianism, it does usno credit to adopt policies that reflect the principles of our enemies more than they do our own democratic traditions. Bush should demonstrate the values and openness of our government and of his administration by canceling this order and directing the attorney general to revoke his memorandum.It shouldn't have to take legal proceedings, congressional action or public pressure for Bush to come to the understanding that the president's papers are not in fact the president's papers, but rather the records of the people's presidency.

Steven Hensen, director of planning and project development at Duke University's Rare Book, Manuscripts and Special Collections Library, is president of the Society of American Archivists.


New York Times Editorial Comment | Misusing Executive Privilege
December 15, 2001

President Bush's broad assertion of executive privilege to block a Congressional review of internal Justice Department documents pertaining to F.B.I. misuse of mob informants has inflamed lawmakers on both sides of the aisle - and properly so.

The president's attempt to interfere with a legitimate inquiry represents a troubling expansion of executive authority. It also recalls the exotic and ultimately unsuccessful privilege claims his predecessor, Bill Clinton, concocted to thwart Congressional and independent counsel investigations.

One subpoena the administration denied was issued by the House Government Reform Committee to assist it in exploring charges that the F.B.I. had long protected two mob informants in New England even as they committed assorted crimes and caused an innocent man to go to jail for murder. Two other subpoenas pertaining to less active committee investigations were also ignored.

In his message instructing Attorney General John Ashcroft to resist the committee's subpoenas, Mr. Bush voiced concern that disclosure of confidential recommendations about whether to bring criminal charges would inhibit candor and risk politicizing prosecutorial decisions. That worry is not altogether frivolous, and Congress plainly needs to tread carefully. But it does not justify a blanket presidential order denying access to records that were routinely made available in the past, especially when those records pertain to investigations that were closed some time ago.

Presidents going back to the dawn of the Republic have periodically felt compelled to withhold certain information from Congress. But it was not until 1974 that the Supreme Court recognized the legal doctrine of executive privilege. Since then, courts have consistently interpreted the doctrine to protect the confidentiality of only a narrow band of high-level deliberations involving the president or at most his closest advisers.

Dan Burton, a Republican and chairman of the Government Reform Committee, and Henry Waxman, its ranking Democrat, do not agree on much. But both men feel strongly, as do we, that Mr. Bush should defuse the present constitutional clash by withdrawing his unwarranted privilege claim.


Bush Makes Justice Papers Secret
By THE ASSOCIATED PRESS - December 14, 2001

WASHINGTON (AP) -- Since taking office, President Bush has sent a clear message to Congress: Some sensitive information Capitol Hill lawmakers have been used to getting will be off limits.

Bush sent the most powerful part of the message Thursday when he invoked executive privilege to protect the confidentiality of prosecutorial documents Congress has often received in the past.

Kept out of lawmakers' hands are documents pertaining to the FBI's handling of mob informants in Boston in the 1960s and the Clinton-era fund-raising probe of the 1990s.

"This is the beginning of a real constitutional confrontation," said Rep. William Delahunt, D-Mass. "I think they ran into the wrong chairman, the wrong committee and maybe the wrong Congress."

The House Government Reform Committee chaired by Rep. Dan Burton, R-Ind., had subpoenaed the Boston material.

"I think it's just a power grab" and "a clever maneuver politically," Catholic University political science professor Mark Rozell said of the president rebuffing congressional demands.

After a prolonged battle, Attorney General Janet Reno turned over much material to the Republican-led Congress from the fund-raising investigation of the Clinton campaign of 1996.

The Bush White House's strategy is "to make a sharp turn to get them back" to where the Republicans think the privilege should properly be, said St. John's University law professor John Barrett.

Rozell said it is disturbing that the White House takes the position that a dispute involving a prosecutorial matter is automatically resolved in the executive's favor.

The Justice Department almost always withholds materials from Congress in ongoing investigations, but in closed probes the need for secrecy is greatly reduced.

Withholding information from Congress has become a White House habit.

The president didn't bother to consult the Senate Judiciary Committee chairman before disclosing his plan for military tribunals. Since last spring, Vice President Dick Cheney has been refusing to disclose his secret energy meetings with power industry executives and lobbyists.

Senate Judiciary Committee member Charles Grassley questions Bush's position that access to the Justice Department documents would be contrary to the national interest.

"Anything that limits legitimate congressional oversight is very worrisome," Grassley said. "This move needs to be carefully scrutinized, particularly in an atmosphere where Congress is giving the Justice Department additional powers and authority."

At a hearing before Burton's committee, Justice Department criminal division chief of staff Michael Horowitz argued keeping deliberative documents away from Congress would "insulate career line prosecutors and their internal deliberations from political pressure."

"What you have said is extraordinarily insulting," responded Rep. Christopher Shays, R-Conn.

"We all think this is stonewalling. It's a terrible, terrible precedent to set," Burton said. "We might be able to go to the (House) floor and take this thing to court."

The full House, controlled by Republicans, would have to vote to find Bush in contempt to start such a court battle.

"The point is if you have corruption in the Justice Department and you let an executive decision stand, you can't root out corruption," Burton said. "This is not a monarchy."

In the Boston case being examined by the committee, Joseph Salvati spent 30 years in prison for a murder he did not commit, even though the FBI had evidence of his innocence.
*****
EDITOR'S NOTE: Reporter Melissa Robinson in Washington contributed to this report.


Ashcroft Praises German Terror Law
By THE ASSOCIATED PRESS - December 14, 2001

BERLIN (AP) -- Attorney General John Ashcroft praised Germany's newly enacted law that allows authorities to ban religious organizations used as fronts for extremists, saying Friday it was a necessary measure in the war on terrorism.

The law, which came into force Dec. 8, was brought about after authorities investigating possible connections to the Sept. 11 terror attacks argued they were being hamstrung in their efforts by strict legislation protecting religious freedoms.

Interior Minister Otto Schily made quick use of the new law, on Wednesday banning an Islamic organization he accused of being a "breeding ground for terrorists," and saying the legislation could lead to the expulsion of many extremists who have been granted asylum in Germany.

"We commend Germany for its actions to provide greater opportunity to detect and disrupt terrorism through a better framework of laws in Germany," Ashcroft said after meeting with Schily to talk about the legislation and the overall German investigation into the attacks, which U.S. and German authorities believe were planned by a terrorist cell of Osama bin Laden's al-Qaida network in the German city of Hamburg.

Later in the day, the German government passed an even broader anti-terrorism package that will come into effect Jan. 1.

Under the new laws, law enforcement agencies will be allowed to request information from financial institutions, telecommunications companies, and airlines -- all of which was previously prohibited under the country's data protection statute.

The new package also makes it easier to deport foreign extremists living in Germany, allows for the addition of biometrics -- such as a fingerprint -- to passports and identity documents, and allows for the addition of sky marshals on flights.

Ashcroft's short trip through Europe started in Britain, then Spain, Germany, and ends in Italy -- four countries believed to be key logistics points for men who hijacked the planes used in the attacks that killed thousands.

Later Friday, Ashcroft met in Rome with Justice Minister Roberto Castelli at the U.S. ambassador's residence. He planned to meet on Saturday with Italian Interior Minister Claudio Scajola.

Arrests of people accused of having direct links to Sept. 11 have been made in Britain, Germany and Spain, and Italian authorities have several men in custody who are believed to be part of al-Qaida, including Essid Sami Ben Khemais, the suspected head of bin Laden's European logistical operation, according to local prosecutors.

Ashcroft is meeting with top law enforcement officials in each country, but would not say if the trip represented a shift of the focal point of the investigation to Europe now that leads in the United States appear to be drying up.

While in London on Wednesday, Ashcroft told reporters the United States would deal with European objections to the death penalty on a case-by-case basis as it seeks extradition of suspects linked to the Sept. 11 terrorist attacks.

He would not address the issue in Berlin, simply saying that he and Schily had not discussed the case of Mounir El Motassadeq, the only person in custody in Germany on charges related to the attacks. Motassadeq is accused of controlling an account used to bankroll several of the hijackers.

European countries have abolished the death penalty and will not extradite suspects who face the death penalty in another country.


HELEN THOMAS | It's Time To Speak Up

WASHINGTON - 12.14.01 | If there ever was a time when Americans should speak up on behalf of people in this country whose rights are being abridged, that time is now.

I remember with tremendous sadness the statement of Martin Niemoller, a Lutheran minister in Berlin, after World War II as a warning of what can happen when people do not come to the defense of others whose civil liberties have been taken away.

Niemoller said, "In Germany they came first for the Communists and I didn't speak up because I wasn't a communist. Then they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I was a Protestant. Then they came for me -- and by that time, no one was left to speak up."

Niemoller had founded the Pastors Emergency League to Resist Hitlerism and had been confined to Nazi concentration camps for eight years before his release in 1945.

Happily, we do not have that kind of environment in the current terrorist crisis. But there is always the possibility that we could create an atmosphere where dissent and freedom of speech are not tolerated on grounds of national security.

We all know America is admired by people around the world because of its freedoms, especially those under the Bill of Rights, which protects citizens and even non-citizens. We are a nation that has been governed by laws that have endured for more than 200 years. If we lose our title of "land of the free," what have we got?

Under his authority as commander-in-chief, President Bush seems to have given his Cabinet carte blanche in pursuing suspects, detaining immigrants secretly and establishing military tribunals that could impose the death penalty by a two-thirds vote of the jury without judicial review.

Attorney General John Ashcroft, summoned last week before the Senate Judiciary Committee, was masterful in showing that the best defense is a good offense.

He bluntly attacked the panel's chairman, Sen. Patrick Leahy, D-Vt., and other critics who had voiced concerns about lost liberties. "We need honest, reasoned debate, not fear-mongering," Ashcroft said. "To those who scare peace-loving people with phantoms of lost liberty, my message is this: 'Your tactics only aid terrorists -- for they erode national unity and diminish national resolve."'

Actually, the real erosion takes place when we allow the chipping away of the bulwark of the U.S. Constitution and our overall record on human rights, which have made us a beacon around the globe.

Where are the modern-day Patrick Henrys and Thomas Paines when we need them? Henry was the most celebrated orator of the American Revolution. Every schoolchild has learned his ringing call, "Give me liberty or give me death." And Paine is remembered for his pamphlets on behalf of political equality, tolerance, civil liberties and human dignity.

But Ashcroft argued that people who hope the kind of terrorist attacks that occurred on Sept. 11 will not be repeated "were living in a dream world."

He held up a training manual for al-Qaida, Osama bin Laden's terror network, and said it showed that "terrorists are taught how to use America's freedoms as a weapon against us."

With strong support in the public opinion polls, the administration obviously feels it is free to proceed in curbing civil liberties.

In their questioning of Ashcroft many of the senators, except for Leahy and Russell Feingold, D-Wis., rolled over. After all, who wants to be called unpatriotic in these times?

Where are the profiles in courage? There are not many on Capitol Hill, where lawmakers seem to be giving up their own rights to set rules on the treatment of immigrants and others in this country who are detained or sought by the government for questioning.

To Bush, Ashcroft and Defense Secretary Donald Rumsfeld, I would ask this: Please remember the quote of Adlai Stevenson, the Democratic presidential nominee in the 1950s who said, "Democracy is great not just because the majority prevails but because it is safe to be in the minority."

The attorney general, accusing the critics of exaggerating or misstating the dangers of the government's new curbs on civil rights, insisted that the Justice Department "has sought to prevent terrorism with reason, careful balance and excruciating attention to detail."

Of course, Americans are willing to defer some of the freedoms they once had for valid security reasons. No one can dispute the need for strict enforcement of the rules at airports and in vulnerable public buildings. Arrests of foreign-born residents accused of violating immigration laws or of having knowledge of terrorists or their plans are certainly legal. But those detained should also be given due process rights and equal protection of the laws. And the long detentions of innocent persons based on little or no evidence should be stopped.

Ashcroft plans to offer immigrants help in obtaining citizenship if they snitch on their friends or acquaintances as dangers to the Republic. But such an official policy would undermine our nation's reputation for probity and decency.

What we need now are more leaders who are students of civics, democracy and especially the Constitution. For to become great Americans, we must know why the founders of our country were so outstanding.