---Judge Robert Bork (41)

---Justice Clarence Thomas, U.S. Supreme Court (43)

---Vice President Richard Cheney (44)

The Federalism debate came back with a vengeance during the administration of President Ronald W. Reagan and in great part due to the onset of the very rigid and conservative Federalist society. (45) The white backlash in the South to liberalism has been a strategy utilized by the Republican Party since President Nixon used political rhetoric to help prevent any further gains to be made from the Civil Rights movement. The Federalist Society shares many of the same views of the anti-liberal South, including ultra-conservative values that reinforces “fundamentalist Christianity, states' rights ideology, {and} conservative views on race.” (46) Ken Starr, the former Special Prosecutor of the trial and impeachment of former President Clinton is a member of this conservative-based society. (47)

These right wing ideologues opposed the gains made during the Warren and Burger Courts which were seen as too liberal, therefore, they had opted to go for what was thought in history’s past as a strict constructionist interpretation of the Constitution, but, because of liberal legal reforms they had wanted an “originalist” way to interpret the Constitution. This debate was focused on less power in the federal government. They advocate for states rights which in their devious manner is a war on the gains made during the Civil Rights movement. Viewing equal rights as special rights, the radical right-wing’s first step in their extreme legal ideology is to reverse laws they view as being un-Constitutional. (48) The members of this society chose the name “Federalist” from James Madison’s former political party, arguing for a decentralized government. The Federalist Society’s website reaffirms their belief in an interpretation of a Madisonian America, with a much often quote of one of America’s founding fathers, James Madison. (49) Although the Federalist Society might indeed have this quote to rely on, Madison also said on November 23, 1787, in Federalist Number 10, about power in the hands of a few based on a pretext that “Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.” (50) The Federalist Society advocates for a “greater appreciation for the role of separation of powers; federalism; limited, constitutional government; and the rule of law in protecting individual freedom and traditional values.” (51) On their website they speak to the fact that civic responsibility and morality are meshed in one, not separate and point to the First Inaugural Address of President George Washington that “the preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.” (52) The Federalist Society then points to the moral tone of Washington in the Farewell Address in saying that, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.” (53)

The Federalist Society is an important group to be informed about regarding the future course of American public policy and long-term legal decisions. The Federalist Society is rooted in an extreme ideological conservatism which has a very rigid interpretation of the Constitution of America’s past. In some cases this society would like to see some past Supreme Court decisions overturned in the near future that would turn back prior legal precedents established by the High Court. (54) The Federalist Society is made up of both a conservative and libertarian sect of the Republican Party whose goal is to use the federal court system to implement and affirm regulations in the areas of social and economic law over the authority of either the Executive or Legislative branches of government. (55)

In addition to reversing the gains made in the Civil Rights era, the Federalist Society also has an energetic legal strategy in “rolling back the New Deal.” They oppose the regulatory standards of the New Deal which they view as conflicting with big business and violating constitutional guarantees. (56) Medicaid is one program of the New Deal era that the Federalist Society close to President Bush oppose. Gutting the safety net is the objective of these legal scholars and judicial activists from the Federalist Society. (57) The Federalist Society is significant because they interpret the Constitution in their own narrow view based on an originalist or strict constructionism. Therefore, they would like to rollback many gains made in the area of civil liberties with regressive laws. The Federalist Society opposes most civil rights legislation in addition to privacy rights issues and the Miranda ruling, but supports the Patriot Act, which is contrary to the reforms made in the mid-1960‘s. If the Federalist Society members continue to gain more seats on the Federal Courts, Appellate Courts, or District Courts, aside from the Supreme Court, then the legal vision in America will only become more narrow tailored to the wishes of the extreme right-wing. These narrow interpretations will without a doubt impact the future implementation of Internet law, most likely, in the private interest, at the peril of the public interest. The arguments made against pornography web sites at first glance is a good idea. However, in the case of government lawyers, this is one clever way to gain more authority and snooping powers under the disguise of protecting children and a better moral society. The Federalist Society makes the claim how they want a more ordered society and on this issue the case can be plausibly made. The Internet needs to be free of ideologues control and power to interpret Internet law the way they see fit. It is ironic or predictable that Federalist Society member John Ashcroft pushed for the Patriot Act which has laws made around restrictions to the Internet and laws made against cyber crimes. Laws made for the express purpose of protecting children, a noble idea, may also be the fait accompli for those who enjoy the right to their own privacy on the Internet. This types of arguments made by ideologues will indeed limit accessibility and free speech on the Information Superhighway. The future of the Internet in its present form has been compromised in a significant manner by the Bush administration. Laws once made are hard to rescind, and in the name of Ralph Neas from the People for the American Way Foundation, the Right Wing Dream has certainly ascended onto the nation’s political domain and is now infiltrating the higher courts with their legal scholars from the Federalist Society. The Patriot Act for better or worse has not seen its fullest ramifications at this early juncture of its indoctrination into the legal justice system in America. Freedom of speech is no longer fully protected if one is deemed a national security threat, whereby, your computer and belongings may be confiscated. This legal act has forever changed the scope of the Internet and computer use, even if done, albeit, secret investigations. The impact of the Patriot Act can be seen in the light that it is a living document, which in the future may see the private sector gaining more power in the way its allowed to conduct business, free of most regulations by the government which will increase their ability to choose what goes on the web pages of the Internet.

The primary arguments at the present time from the right-wing ideologues in the Bush administration is that a moral center is lacking inside America. It is this war on terror that the right-wing faction making up the Bush administration has seized on, in order to manipulate public opinion in an attempt to shift public policy all in their favor. This includes Internet Law and those items in the Patriot Act which deals with computer crime. The arguments of the Bush administration are misleading. The Bush administration is full of extreme right wing Federalist Society Attorney’s who do not place at a high premium civil liberties or civil rights legislation whatsoever. In fact, they write legal policy papers opposing in the strongest terms the right to privacy, due process, voting rights, and women’s rights. Do you think Federalist Society lawyers in the future will endorse Internet rights of individuals if the web site does not fit with extreme right-wing ideologues which makes up this society? Most likely their trend of opposing civil rights laws even as it relates to the Internet will favor the private interest of corporations. It will be the corporations who make determinations of what is allowed on the Internet, not the government. The objective of Federalist Society lawyers is to de-legitimize the role of government and allow more private business to flourish without interference.

Simon Lazarus, now a practicing Washington lawyer who once worked for President Jimmy Carter says that “fully implemented,” the “results” of the Federalist Society’s interpretation of law “would startle liberals, centrists and a good many conservatives as well. Venerable laws and regulations in vital sectors such as health, environmental protection, telecommunications and welfare would be struck down or rendered unworkable.” (58) In 1979 conservative Michael Horowitz penned a document which called “conservatives to overturn a half-century of liberal dominance of the legal establishment” when he that spoke about “the public-interest law movement,” opposing government interference in the free market as well as any regulation. As Jeffrey Landay made the point that the strategy of conservative legal scholars to judgeships has been successful with “weakened or rolled back statutes on civil rights and affirmative action; voting rights; women’s rights and abortion rights; workers rights; prisoners rights; and the rights of consumers, the handicapped, and the elderly.” (59)

Jerry Landay said in a report in the Washington Times, that “the Federalist Society is quite simply the best-organized, best-funded, and most effective legal network operating in this country.” (60) From its first donation of twenty-five thousand dollars in 1982 to its almost three million annual financial contributions by the late 1990’s, the Federalist Society has come full circle with its money, power, prestige, influence, and name recognition. It had noted neoconservatives William Simon and Irving Kristol along with many other influential right-wing base support. The other major contributors to this society include to the present day big money conservatives which includes “the John M. Olin Foundation, the Sarah Scaife Foundation, the Lynde and Harry Bradley Foundation, and the Lilly Endowment.” (61)

The early success of the Federalist Society was the activism on college campuses. The Federalist Society was founded in opposition to liberalism. Failed Supreme Court nominee Robert Bork and present Supreme Court Justice Antonin Scalia were instrumental in founding this society. In response to their anti-liberal views or interpretations, the Federalist Society has a very strong conservative point of view and their legal philosophy reflects this outlook on how the law should be represented in America. (62) In a study, poll numbers indicated that “eighty percent of U.S. law professors describe themselves as “Democratic or leaning Democratic,” while only thirteen percent call themselves “Republican or leaning Republican.” (63)

The Republicans had a judiciary strategy that was more important than any social movement or political cause with the fight to be won by choosing conservative judges. Their main objective was to replace liberal judges who were on the judicial bench from every level in the federal court system. Once they had succeeded the conservatives would determine the real interpretation of the Constitution free of liberal activism. Also, part of the strategy was recruiting conservative legal scholars from the nation’s top law schools who would carry this right-wing message. Yale and the University of Chicago were the schools that the F. S. launched their original university chapters, under the guidance of Robert Bork. Bork was a professor at Yale, while Scalia was a faculty advisor at the University of Chicago. (64)

Bork holds very extreme legal positions that are beyond sound reason. He was opposed to the Civil Rights Acts in 1964, and made the claim that the Declaration of Independence was incorrect declaring, “all men are equal.” The Washington Post reported a partial text of Bork’s opposition of ending racial segregation in the South along with the Public Accommodations Act which did not allow for hotels or restaurants from not serving black people. Bork argued that the Constitution allowed for freedom of dissociation, thereby making legal segregation justifiable, in America. Here, Bork rants about the tyranny of the majority:

“There seems to be a strong disposition on the part of proponents of the legislation simply to ignore the fact that it means a loss in a vital area of personal liberty. That it does is apparent. The legislature would inform a substantial body of the citizenry that in order to continue to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate.... Though the basic objection is to the law's impact upon individual liberty, it is also appropriate to question the practicality of enforcing a law which runs contrary to the customs, indeed the moral beliefs, of a large portion of the country.” (65)

Justice Scalia was appointed and then confirmed to U. S. Supreme Court, in 1987, during the Reagan administration. He opposed the rulings of the Warren Court, while criticizing rulings made in the past by liberal activist judges. He argues legal rulings with a strict constructionist constitutional interpretation of both Madison and Jefferson. Therefore, Scalia interprets the Constitution, not as a “living” one, but, an “originalist” one. Thinking that this orginalist view should be the only standard interpretation, Scalia maintains that the Constitution should be not deviate from the exact language of the written words of the framers, in order, to bring America back to its self-preservation past. He opposes the concept of the “living Constitution” which extends interpretations from the time of its original inception, which is subjective ruling, which needs to be avoided. These attitudes fit neatly into Scalia’s ideology that opposes civil rights, abortion rights, and affirmative action. With the originalist interpretation Scalia is able to justify rulings that would legalize oppression, inequality, and bigotry as in the days when voting rights were not applied to everyone, Africans were three-fifths of a person, and women as property of men with no right to vote. He said that social legislation should not be determined by the Supreme Court but should be decided with efforts of the citizenry in working with the legislative branch to have abortion rights or the death penalty changed. (66)

From the start, it was important for the establishment of charter member organizations within the university structure at the nation’s most prestigious law schools, such as Dartmouth and Cornell as a step to recruit new members into this society which saw enormous growth by the early 1990s. Publications like the Dartmouth and the Cornell Review were started to not only oppose but to attack widely held social liberal viewpoints. (67) Campus organizations are still going strong till this day. (68) The present Board of Directors of the Federalist Society were both founders of their university’s chapters of this organization. Both Steven Calabresi and David McIntosh were heavily involved with activism from the early days of this society, which has continued to the present shows how important this networking process has paid off in the long-term. Calabresi is a graduate of Yale Law School while McIntosh is a graduate of the University of Chicago Law School, respectively. (69)

There are very prominent members in the Federalist Society who are very influential in the American political system. These individuals are on the front lines as well as working behind the scenes in the promotion of deregulation and opening the free market to less restrictions as the public interest is held with less significance in favor of the corporate interests that these well known political figures of the Federalist Society represent and their connection to the Republican Party. The Board of Directors at the Federalist Society includes National Co-Chairman and Professor Steven G. Calabresi; National Co-Chairman David M. McIntosh; Director and Professor, Gary Lawson; Director Eugene B. Meyer; Counselor, T. Kenneth Cribb; and Jr; and Treasurer Brent O. Hatch who is Senator Orrin Hatch’s son and is on the Business Advisory Council (70) The Staff at the Federalist Society includes: Eugene Meyer, President; Leonard L Leo, Executive Vice President; Peter Redpath, Director, Student Division; Patty Price, Director, Development; Dean Rueter Director, Practice Groups; Douglas E. Ubben, Director, Finance; Lisa Budzynski, Director, Lawyers Chapters; C. David Smith, Director, Membership; David C. F. Ray, Associate Director, Lawyers Division; Joel Pardue, Associate Director, Lawyers Division; Jesse King, Assistant Director, Lawyers Division; Rhonda Moaland, Office Manager; Juli Walker Assistant Director, Practice Groups; Justin Memmott, Assistant Director, Development; and Hanalee Hawkins Assistant Director, Student Division. (71)

The Business Advisory Board of the Federalist Society includes C. Boyden Gray Chairman of Wilmer, Cutler & Pickering Law firm; John Stewart Bryan, III, Chairman, President and C.E.O. Media General Cable; C.E.O. and Chairman of the Board Geneva Steel, Joseph Cannon; R. Crosby Kemper, III, President, United Missouri Bank; John G. Medlin, Jr. Chairman of the Board at the Wachovia Corporation; Nicholas John Stathis who is the Vice President of Orpheon, Inc; Paul S. Stevens who is the General Counsel, Investment Company Institute; and Robert L. Strickland the Chairman of Lowe's Companies, Inc. This is quite important as Gray worked under President Bush and many of these other influential members have prominent positions in the business world shaping the course of American society. (72) The Board of Visitors in the Federalist Society includes a who whose list of Republican legal and political operatives who are opposed to the advances made during the Civil Rights movement. This would Co-Chairmen, Robert H. Bork and U. S. Senator Orrin Hatch. Other members on the Board of Visitors includes: C. Boyden Gray; Andrew J. Redleaf; Lois Haight Herrington; Donald Paul Hodel; Gerald Walpin; Edwin Meese, III; University of Virginia Professor Lillian BeVier; Harvey Koch; William Bradford Reynolds; Robert A. Levy; and Frank Keating, II. (73) Meese was Attorney General under Reagan while Gray was White House Council for the elder Bush. Hodel was once the chief of the Christian Coalition. Ralph Reed who was also part of the Christian Coalition is now an advisor on policy in the Bush White House. (74) Orrin Hatch and Gray have been persistent critics of the EPA's particulate standards but also opposing these matters as partisans for big corporations. This is the function of the Business part of the group. (75) Lillian BeVier who serves on the Federalist Society's Board of Visitors, is also on the Advisory Board of the Independent Women's Forum, an auxiliary group of the Federalist Society comprised of right wing female activists who are seen as counter-balance to liberal women‘s groups. (76)

The Federalist Society which represents ultra-conservative issues is more linked to the administration of President Bush than any other president in recent times. Bush relies heavily on the Federalist Society connection choosing his legal counsel and advice on issues were determinations needed by a lawful reading must be made. The Bush legal counsel, also members of the Federalist Society Members are ““far-right,” “ultra-conservative” and “right-wing reactionary.”” This organization is comprised mainly with right wing conservatives and libertarians. (77) And the emphasis by President Bush has been to pick these ultra-right reactionary Federalist members in his administration, viewed by many analysts to be more right wing than the conservatism present during the Presidency of Ronald Reagan. (78) President Bush relies on people who are closely tied to the belief system of right-wing ideologues, Supreme Court Chief Justice William H. Rehnquist along with Federalist Society members Antonin Scalia, and Clarence Thomas, in choosing the legal staff in the White House Counsel's Office. Bush also looks to gain legal counsel from his Solicitor General, Ted Olson who argued the 2000 presidential standoff race with Al Gore, before the Supreme Court. (79) Bush also looks to other society members in his administration for legal advice, including, Gale A. Norton, Secretary of the Interior Department; Energy Secretary, Spencer Abraham; and Lee Liberman Otis. (80)

Simon Lazarus says the society, comprised of a “loose confederation of conservatives and libertarians” will “try to use the federal courts to micromanage economic and social regulation, regardless of which party the electorate chooses to control Congress or the White House.” (81) President of People for the American Way, Ralph Neas, said that Bush has chosen an extreme group of people to the administration with a very radical view apart from all other administrations, including Nixon and Reagan. Neas pointed out that Bush is utilizing Federalist Society members as the integral part of his legal team, adding that, “what you're seeing is an administration that, believe it or not, is further to the right than either the first Bush or the Reagan administration...Across the board, it's obvious that the right wing is in control. And it's a right-wing agenda that's being implemented.” Bush is surrounded with moral ideologues whose legal opinions are tinged with religiosity. (82)

The Federalist Society has had enormous influence in devising legal arguments that backs up policy issues, and nominations to the Appellate and Federal District Courts. Attorney General John Ashcroft who is a member of the Federalist Society is also, known to be an extreme right wing ideologue was given the endorsement by the Federalist Society who did not approve of the more moderate conservative, former Montana Governor Marc Racicot. Thus, the endorsement and extreme right wing views of Ashcroft paid off with his appointment as the Attorney General. The Federalist Society is a group of extreme right wing lawyers who do not exactly endorse the moderate tone of middle conservatives. (83)

One of the most well known political figures to the Federalist Society is United States Senator Orrin Hatch, Republican from Utah who is a member of member of the all-important Senate Judiciary Committee. (84) Showing his political partisanship, yet, ideological bias, Hatch said that if Al Gore had been President America would be under “a sea change in the law to the detriment of every family, every religion, every person of conscience.” (85) From an ideological standpoint, both Orrin Hatch and his son Brent both members of the Federalist Society opposed the continued relationship of the American Bar Association providing recommendations to the Executive Branch with judicial nominees. (86)

The Bush administration severed ties with the American Bar Association. Although the American Bar Association had been reviewing the credentials of nominees to the federal judiciary since the administration of President Dwight D. Eisenhower, the ideologues in the Bush administration opposed the fifteen member Standing Committee as well as the rating system of the ABA. Thus, they would see any negative reports on their federal judiciary nominees. The right-wing ideologues did not forgive the ABA for opposing the nomination of Bork to the Supreme Court, and moved thereafter to purge the influence of the ABA from judicial nominees. The Bush administration also, wanted the removal of the ABA because they endorsed candidates hostile to the corporate interest. Despite claims made by Republicans and the Wall Street Journal that the ABA is too liberal, the President of the ABA, Martha Barnett is “a partner in Holland & Knight, a 1,100-attorney Florida-based firm which, according to its web site, specializes in representing “banking and finance, utilities, insurance, domestic and foreign governments, media, shipping lines and cruise operators, airlines and aircraft manufacturing, transportation, real estate development, mining, agriculture, trade, intellectual property, health care, construction, entertainment, telecommunications, and hotel, resort and timeshare.” (87)

One must understand the hand of the Federalist Society and its long reach in legal matters beyond the federal system alone. In the state of Michigan, the Federalist Society has great influence on the legal decisions made in the State Supreme Court where “five of the seven justices” are members of the Federalist Society, including Governor John Engler. (88) There are also seven other members of this Society working at the Department of Justice, including Larry Thompson the Deputy Attorney General, Viet Dinh the Assistant Attorney General for Legal Policy, and Thomas L. Sansonetti who is the Assistant Attorney General for Environment and Natural Resources. The longer list of all Bush administration officials from the Federalist Society, also all lawyers, is listed in the footnote. (89)

The beliefs and positions of the Federalist Society follows the ultra-right positions that are tied to a strong doctrine rooted in Christianity. The Federalist Society has been “providing a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, law students, academics, and the architects of public policy, the Society has redefined the terms of legal debate.” (90) The F. S. is attempting to change the existing legal structure in the United States with its group for Law and Public Policy Studies. The Society says it is “committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote awareness of these principles and to further their application through its activities.” (91)

Federalist Society members hold extreme views such as their argument against the Miranda ruling. The Federalist Society believes that the only role of the federal government is to protect the national security of the United States. They advocate allowing the national government to cede authority to states and localities. There is no room for the national government to enforce the rule of law or to be a provider in areas such as civil rights, workplace safety, discrimination law, and other entitlements. The objectives of the Federalist Society are reflected in the writings of its members, many of whom have written position papers about the proper role of the government in legal decisions from the Executive branch to Congress as well as the Supreme Court. This group does not endorse civil rights, but does its duty to undermine any gains made which is indicative of Greg Katsas who has repeatedly opposed the 1965 Voting Rights Act. This type of opposition displays the ongoing hostility of the right towards equality in the law. (92)

The modus operandi of the Federalist Society is rolling back prior progressive policies in favor of regressive ones. The present causes and legal issues of the Federalist Society reflects the conservative positions whether its opposing affirmative action, gun law restrictions, rights of the accused or the abortion issue. They have rigorously opposed all these issues in the legal and political arena. The Federalist Society rejects the Brady Bill which requires background checks with gun owners because it interferes with the right to bear arms, in which case the Congress has no right to change. They are vigorously opposed to affirmative action laws which has been made one of their battle issues. Jeffrey Sutton of the F.S. argued before the University of Alabama vs. Garrett case regarding disability law in the Supreme Court with the ruling favoring the anti-civil rights group. It said that people with disabilities could not sue a state employer in federal court. Sutton has vehemently opposed the American with Disabilities Act, but in this case the court only rolled back the specifics of the case, not the overall scope of the act. Sutton the “pro-civil rights” advocate was nominated by President George W. Bush to the U.S. Court of Appeals on the Sixth Circuit. Sutton not a civil rights advocate in 1994 worked to reverse the Violence Against Women Act, that gained noted criticism. Roger Clegg has also led the charge against affirmative action and multiculturalism, such as bilingual education along with tougher immigration laws. Sound like Ashcroft to you? (93)

By the mid-1990s, California and Texas were the only two states to remove racial preferences from their admissions rules (94) and the ultra-right conservative Federalist Society was in full support of this action. These ultra-conservative activists were out front and center fighting against affirmative action cases in America. In 1996, Cheryl Hopwood and three white students brought suit against the University of Texas Law School saying that their constitutional right to Equal Protection of the Laws had been violated, arguing “reverse discrimination.” Hopwood disputed the admission of the 62 out of 93 black and Latino students without challenging the 130 white students who were admitted, who all had lower test scores than she did. Hopwood received high grades at a community college and a state university, in which case, points were taken away in denying her entry. (95) A Federal District Court Judge said that it was well documented that discrimination had been ongoing in higher education, in Texas, thereby, the admission policy was constitutional, to remedy past injustices. (96) Hopwood received a favorable ruling when the three judges on the Fifth Circuit Court of Appeals, consistent with conservative ideology of Reagan and Bush, who appointed them, declared “reversed racism” saying that Blacks and Mexicans were given “favored minorities” status in relation to preference their “admissions program...to the dentriment of whites.” (97) As a result, race cannot be used as a factor when making decisions in regard to admission policy considerations, while ending programs such as financial aid. (98) Bush’s Solicitor General Ted Olson, also of the Federalist Society, assisted the Center for Individual Rights who brought this case forward in defense of Ms. Hopwood (99)

On December 2, 2002 the Supreme Court said it would decide on the race-conscious admissions procedures at the University of Michigan. (100)The major conflict to be decided will be whether Michigan is violating Title VI of the Civil Rights Act, which bars racial discrimination by federally funded institutions, or the clause of the Constitution's 14th Amendment that guarantees equal treatment for all citizens under state law. (101) The cases argued before the Supreme Court against the former Michigan University President at the time are Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516. (102) Gratz was turned down in 1995 to the undergraduate program, (103) while Grutter filed suit in 1997 saying she was unfairly denied admission to the law school in a de facto minority quota system. (104)

The Center for Individual Rights, a conservative-based public interest law firm has taken this challenge proudly to the Supreme Court. (105) President Bush views the admission policies at Michigan as a de facto quota system as well as being unconstitutional because it awards students twenty points based on their race, establishes numerical targets, and failed to use a race-neutral approach. (106)Thus, on January 16, 2003, (Martin Luther King, Jr. s Birthday) the Bush administration filed a brief declaring that the race-conscious admissions policies at the University of Michigan is unconstitutional which does not uphold the construct of equality. (107) Bush was wrong in his characterization that “quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair and impossible to square with the Constitution,” Quota systems were ruled illegal in 1978, and are not in place at Michigan, any more than college athletes receive who do not meet traditional admission standards. This opposition shows how ideological the legal policy set in his administration operates. Opposed to civil rights guarantees Bush in his own words sends the message that schools, should not, “seek diversity by considering a broad range of factors in admissions, including a student's potential and life experiences.” (108)

From an ideological view, the Federalist Society believes that society needs to be ordered, which has given way to disorder from legislative and judicial decisions regarding crime as well as life and death issues, such as the Miranda ruling and the Roe v. Wade decision allowing abortion rights. The decision of “Roe v. Wade and its legacy” has been viewed as a national crisis by the Federalist Society. It is only with a more “ordered liberty” vs. a “disordered liberty.” (109) in the “civil argument” on the tolerance of abortion that the moral duty by legislative decision change, rather than allowing poor decisions to be made which is “an abdication of their duty in our representative form of democratic government.” ^{(110) The Federalist Society views ending the life of the fetus from the mother as a cut to the natural ordering process. This interrupts the ordered process only dead tissue remains. This is an assault on minority rights to the Federalist Society. To maintain an ordered society there must be the} “protection of minorities is only secure when such protections are supported by the majority, we urge Christians to renewed opposition to every form of invidious prejudice or discrimination.” (111) They contend that people want morality in government which has been lost, stating that:

Already it seems that people who are motivated by religion or religiously-inspired morality are relegated to a category of second-class citizenship. Increasingly, law and public policy will be pitted against the social and moral convictions of the people, with the result that millions of Americans will be alienated from a government that they no longer recognize as their own. We cannot, we must not, let this happen. ” (112)

The Federalist Society says that religion should not be viewed as a bias for certain laws to be ruled inadmissible since “obviously, this was not the belief of those who wrote and ratified our Constitution....For the Founders and for the overwhelming majority of Americans today, ethics and morality transcend human invention and are typically grounded in religion.” Therefore, on the abortion issue, if the “founding principle of self-government has been thrown into question,” and even more so as long as “the Supreme Court and the judiciary it leads do not change course, the awesome consequences are clearly foreseeable.” (113) The Federalist Society says the courts should not be making decisions out of hostility towards religion, but in their view they claim that “it is exceedingly hard to avoid the conclusion that the Court is declaring that laws or policies informed by religion or religiously-based morality are unconstitutional for that reason alone.” (114) Lilian BeVier does not think the argument of privacy rights is justifiable with the abortion issue in what is voewed as the killing of an unborn child, although a fetus. (110) The Federalist Society said, of the privacy argument in the Roe decision that:

“In recent years, power has again and again been wielded, notably by the courts, without the consent of the governed. The most egregious instance of such usurpation of power is the 1973 decision of the Supreme Court in which it claimed to have discovered a "privacy" right to abortion and by which it abolished, in what many constitutional scholars have called an act of raw judicial power, the abortion law of all fifty states.” ⁽¹¹⁶⁾

The F. S. says goes on to say that unborn children are “protected” under the law. Although the world is “wounded by sin,” the Federalist Society believes that “democratic deliberation and decision would result in laws much more protective of the unborn and other vulnerable human lives.” They believe that the Supreme Court made a decision that was “wrong, both morally and legally,” allowing the nation “to withdraw from a large part of the human community the constitutional guarantee of equal protection and due process of law.” The Federalist Society argues that the “American people as a whole have not accepted, and we believe they will not accept, the abortion regime imposed by Roe v. Wade, ” which is why they have made it their objective “to effectively reverse the abortion license” through “peaceful and constitutional means” because this decision to them was a “procedural violation of democratic self government and in its substantive violation of the "laws of nature and of nature's God." (117)

There is no excuse for Christian legislators to ignore their decision-making responsibilities, but, not to allow for any mechanism that would work to “separate their convictions from their public actions, thus depriving our politics of their informed moral judgment, ” as the “other side of judicial usurpation is legislative dereliction.” The Federalist Society says, although it “strongly affirm the separation of church and state,” this does not mean decisions, “which must never be interpreted as the separation of religion from public life.” (118) The Federalist Society believes that the “government by the consent of the governed has been thrown into question,” which has led to the “constitutional order” being in a state of “crisis.” From the “protection of the unborn, providing for the poor, restoring the family, or racial justice-we can and must bring law and public policy into greater harmony with the "laws of nature and of nature's God.” (119) The Federalist Society is also opposed the disorder of more right than necessary to the rights of the accused in the Miranda ruling. They have argued against rights of the accused or suspects proving how they disregard civil rights protections in their ideological based opposition to equal justice. Federalist Society member and Law Professor at the University of Utah, Paul Cassell, has been against the Miranda vs. Arizona ruling which gave suspects rights when arrested and favors more rather than less police powers, saying “the police deserve more flexibility.” Federalist Society Member Eugene Volkh is vague regarding civil rights but does justify a color blind society. Volkh’s version of civil rights is right-wing all the way, as he said:

“Most adopt a vision of civil rights under which the government must generally be color-blind, and may not engage in racial discrimination or racial preferences. This is a widely held view (though most liberal advocacy groups disagree with it). It has been held by, among others, Supreme Court justice William O. Douglas, leading constitutional scholar and former ACLU board member William Van Alstyne, and millions of liberal and moderate voters in California and Washington state. But even with this hot-button issue , there's disagreement within the Federalists, some of whom support certain race preferences.” (120)

In addition to Professor Cassell, National Chairman of the Litigation Practice Group of The Federalist Society, Gerald Walpin, also, argues against the legal validity of the Miranda ruling, which gives more rights to defendants than had been the case previously. (121)Walpin argues against the 1966 ruling of the five-to-four decision in Miranda vs. Arizona, which he claimed the court lacked Constitutional guidance to change making “180 years of contrary doctrine violative of the Constitution.” He did not agree with the four pronged rights given under this law which included “the right to remain silent; any statement could be used against him; the right to have an attorney present at any questioning; or the right to have an attorney appointed if the suspect was without funds.” (122)

Walpin agreed with the dissenting opinion of Justice Harlan in the Miranda case, which the Congress reversed in 1968. Walpin said that Harlan's dissenting opinion in was correct in the sense that ““social costs of crime are too great to call the new rules [enunciated in Miranda] anything but a hazardous experimentation.”” Under 18 U.S.C. §3501, the United States Congress said voluntary confessions were admissible in the court of law, which was in direct opposition to the ruling made in the Miranda Court. Walpin says that “Miranda is not Constitutionally based — Congress is the final arbiter of appropriate rules of evidence and judicial procedure.” He affirms that the decision made by Congress is the correct decision with 18 U.S.C. §3501. This ruling asserts that the Miranda ruling is not based on legal precedent within the Constitution. That an admission would be ruled as evidence regardless whether one was read their rights. (123)

Walpin argues that Section §3501 supported by the Second Circuit Court of Appeals is more significant than the 1966 decision. He said that Section §3501 has not been respected in the past “thirty years,” demonstrates “a classic example of Orwellian double-speak, the Attorneys-General have proclaimed their allegiance to the rule of law by refusing to enforce the validly enacted §3501.” (124)

Walpin makes his case in compelling fashion that Miranda is not Constitutional in the case of U. S. vs. Dickerson. He says that “the Fourth Circuit accepted an amicus brief and oral argument assertion that §3501 required reversal of the suppression order, and held that §3501 superceded Miranda.” Walpin argued that Miranda has given not freedom from rights of coercion or police brutality but that it has provided a previously-unavailable immunity from conviction along with “a system which freed indisputably guilty criminals back into society to repeat their crimes against other innocent persons.” Walpin says that there has never been any “practical logic of Miranda” including weak arguments of “coercive conduct that resulted in a confession.” Walpin also said that “the Miranda rule runs counter to law enforcement and societal needs,” and that its the job of society to keep criminals away from law abiding citizens rather than for defense attorneys or the federal government making laws which allows “criminals to remain silent in order to see if that criminal can get away with the crime.” Walpin sums up that the right ruling was made in the Dickerson case only because he so vehemently opposes the Miranda ruling for crime suspects. Walpin an energetic advocate against the rights of the accused said that “the Fourth Circuit has had the good sense and courage to describe Miranda as what it really is — a rule without any protective cloak for society, but one protecting guilty criminals.” Walpin says that regardless of personal opinion, the law passed in the Congress must prevail. He asserts that the American people are the clients of the Attorney-General, therefore, need to be more active to ensure that the person in this position be made to “press all constructions of the law favorable to protecting the American public.” ^{(125)Walpin believes this needs to be changed to guard against or encourage “lawlessness.” In speaking for this law he said there was some preservation of} “intellectual honesty of two Fourth Circuit Judges in the recent decision they rendered in United States v. Dickerson” (126)

“There are voices in the Republican Party today who preach pragmatism, who champion conciliation, who counsel compromise. I stand here today to reject those deceptions. If there ever was a time to unfurt the banner of unabashed conservatism, it is now.”--Former United States Attorney General John Ashcroft, April 10, 1998 (127)

"That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles."---George Mason, the Virginia Declaration of Rights, 1776

"The greatest [calamity] which could befall [us would be] submission to a government of unlimited powers."
-- Thomas Jefferson, Declaration and Protest of Virginia, 1825. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors, ME 17:445

United States Attorney General, the political appointee of President George W. Bush set out to redefine the authority of the Justice Department soon after the attacks on America, on 9/11, in the name of protecting national security and placing the defense of America as his primary consideration. (128) Before his push for more law, Bush’s nominee, Ashcroft had first faced difficulties in the confirmation process, for the position of Attorney General. This was a result of Ashcroft’s disregard for civil rights, equal justice, and concerns he would not enforce or ensure prior laws would be upheld under established court precedents. Ashcroft not only opposes civil rights but has been hostile to this idea. (129) Ashcroft was defended by partisan ideologues against liberal partisans who attacked or questioned Ashcroft. Federalist Society member Ted Olson said “we’re seeing the same sort of attacks we saw against Judge (Robert) Bork....I don’t think many of us will forget what happened to him.” (130) Ashcroft’s political positions reflect his Christian beliefs. He is a religious ideologue who leads a daily prayer group and Bible study at the Justice Department. Being influenced largely by religious dogma, Ashcroft, not only favors charitable choice, but, also supports “regulatory proposals to authorize more government social service funds to go to pervasively religious groups,” while opposing women’s rights, reproductive choice, and gay rights. (131) Thus, he is part of a group which wants to turn back the gains made during the civil rights era. Both Olson, the Solicitor General and Ashcroft are opponents of minority rights. (132) In the past, Ashcroft has not upheld laws which enforces equality standards or general civil rights legislation, such as individual freedom, equal justice, and the rights of the poor, women, and blacks. He voted against a Hate Crimes Bill based on sexual orientation, gender, disability rights, or other like acts already concurrent. (133) However, Ashcroft, is pro-gun, anti-affirmative action, anti-Civil Rights, and even anti-poor. He opposes handgun control laws and opposed the Brady bill, which does background checks on gun purchasers. He does not respect the separation of church and state laws either as his stand on charitable choice shows. (134) Ashcroft is also pro-death penalty. Ashcroft says there is no racial bias administering death sentence cases. Although a half-truth, Ashcroft claimed in June of 2001, to Congress that “there is no evidence of racial bias in the administration of the federal death penalty,” despite evidence contradicting this assertion as seventy-four percent (of all federal death penalty) cases are blacks. (135)

Ashcroft’s beliefs which are based in ideological extremes and a strict Christian dogma led to the favorable rating given to him by the Christian Coalition. They supported Ashcroft with a one hundred per cent rating on conservative issues, such as abortion rights and school choice. This is in contrast to the NAACP which has given him a failing grade for his legislative voting record in the Senate. The American Conservative Union rated Ashcroft at one hundred per cent in 1996; 1997; 1998; and 1999. In contrast, the AFL-CIO which supports working families rated Ashcroft’s Senate legislation from 1997 to 2000, at zero. (136)

Ashcroft’s views on law and order are guided by his own personal judgments based on an a preconceived thought pattern which consists of cynical presumptions of those who do not share the same right-wing ideological perspective. The strategy of the GOP and the Federalist Society, including Ashcroft has been to contravene past Supreme Court rulings, viewed as liberal justice, by replacing vacancies to the federal courts with right-wing judges. (137) From 1995-to-2001, thirty-five percent of President Clinton’s nominees failed to make it on the federal courts because the Republican Party effectively blocked their confirmation in a full Senate vote. Hatch and Ashcroft of the Federalist Society were the leaders of this ideological war in blocking these nominees. (138)

Ashcroft’s rigidly held views were evident in the attack attitude he presented during the ordeal of Ronnie White’s nomination by President Clinton to the Federal bench. It was on the death penalty issue that Ashcroft opposed Ronnie White’s nomination to the federal bench. (139) He insinuated that White was anti-cop and pro-criminal judicial activist in his dissent against his nomination. (140) Ashcroft not only led the fight against Ronnie White as U.S. District Judge, which has but, helped to stall the nomination from preceding, for seven hundred and seventy-six days. (141) Ashcroft seemed more accusatory based on his ideological beliefs rather than focusing on the “why” or “what” of White’s decisions. Questioning White, Ashcroft sounded more derogatory than he did as a reasoned legislator. Therefore, White was rejected as their questions reflected their partisan right-wing which views. (142) Contrary to allegations that White was not in favor of rulings to upholding the death penalty, Ashcroft was wrong again, as forty one capital murder cases out of fifty-nine which were instituted after arguments were heard, before the State Supreme Court in Missouri. (143) After White’s nomination was delayed for over two years, Judiciary Committee member Ashcroft stated on the Senate floor that:

[U]pon [Judge White’s] nomination I began to undertake a review of his opinions....I believe Judge White’s opinions have been and, if confirmed, his opinions on the Federal bench will continue to be procriminal and activist, with a slant toward criminals and defendants against prosecutors....[H]e will use his lifetime appointment to push law in a procriminal direction, consistent with his own personal political agenda....Judge White has been more liberal on the death penalty during his tenure than any other judge on the Missouri Supreme Court. He has dissented in death penalty cases more than any other judge during his tenure. He has written or joined in three times as many dissents in death penalty cases, and apparently it is unimportant how gruesome or egregious the facts or how clear the evidence of guilt. (144)

Ashcroft opposes abortion and federal funds for contraceptives, saying that, “if I had the opportunity to pass but a single law, I would full recognize the constitutional right to life of every unborn child, and ban every abortion except those medically necessary to save the life of the mother.” (145) Despite Ashcroft’s opposition to David Satcher as Surgeon General because he was pro-choice on abortion, Clinton’s nominee was confirmed despite this ideological opposition of the thirty-five conservative Senators who voted against him. (146) Ashcroft, also voted against the appointment of James Hormel as Ambassador to Luxembourg because he is gay. Chairman of the Subcommittee Jesse Helms and Ashcroft, only needing two votes, stopped this from a floor vote, thereby, denying a full Senate vote, thereby thwarting this nomination. (147) He defended this stance as well. In a 1998 CBS interview, Ashcroft criticized the Democratic party’s policy agenda which supports gay rights, saying they have been “providing a special setting and special rights for homosexuals....I don’t believe we should have special rights there.” (148)

Ashcroft, also, is contemptuous of both the poor and women. Ashcroft worked hard to help defeat Clinton’s nominee Margaret Morrow, labeled a liberal activist, to the Federal District Court in Los Angeles, in 1996, because he did not approve of her legal pro bono work, on behalf of the poor. Despite his opposition, Morrow was confirmed by the Senate. Ashcroft, also, opposed other women judges nominated by Clinton based on ideological reasons. This was evident in the confirmation process of Margaret McKeown, Sonia Sontomayor, Susan Oki Mollway, and Ann Aiken for both the Court of Appeals and the Federal District courts. He opposed Bill Lann Lee’s nomination as Assistant Attorney General for Civil Rights because he supported affirmative action. (149) With strong ideologue opposition to Clinton’s nominees, like Ashcroft’s one hundred plus vacancies were open on the federal bench, in January of 2001, when Bush entered the White House (150)

------The Fifth Amendment to the United States Constitution

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense”

------The Sixth Amendment to the United States Constitution

“The true theory of our Constitution is surely the wisest and best . . . (for) when all government . . . shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as . . . oppressive as the government from which we separated.”

------Thomas Jefferson

The Federalist Society supported the passage of the Patriot Act. Their working paper backed up the Bill as well as Ashcroft’s role. Before taking a look at the debate of lack thereof in Congress as well as the actual sections which speaks to Internet law, let’s pause to ponder here, the ideological arguments made by right wing ideologues like the Federalist Society, Ashcroft, and his defender in the media, Ann Coulter. Here one will get a look at how hard Ashcroft argued for the Patriot Act despite its extreme nature. But, their biggest detractor was Senator Russ Feingold, D-Wisconsin. The Federalist Society’s “White Paper on Anti-Terrorism Legislation,” unequivocally supported the new measure passed by both chambers in the Congress saying that “the tools provided to in the USA-PATRIOT Act are clearly and appropriately directed to meet the challenges posed by the Attorney General,” and giving their strong support to Mr. Ashcroft, in a “non-partisan“ manner. (152) As the Federalist Society’s White Paper on Anti-Terrorism Legislation pointed out, “the Congress listened, acted, and passed an anti-terrorism bill that largely included most of the Attorney General’s suggestions,” showing that, indeed Mr. Ashcroft had great influence in the provisions that had been worked out between the Bush administration and the House and Senate. (153) It is with the passage of the Patriot Act that Ashcroft has much autonomy as well as federal officials to whether communications are disrupted, re-routed, or monitored with the very intimidating Carnivore system, that has been in use by the FBI. Overall, the Patriot Act which was endorsed by Ashcroft without specificity allows:

“federal officials to obtain a wiretapping order that would follow a suspect to any phone the person uses; allows federal officials to obtain nationwide search warrants for terrorism investigations, including for both electronic mails (e-mail) and physical searches; authorizes nationwide search warrants for computer information in terrorism investigations, including billing records; allows federal officials to seize voice mail records if a judge issues a warrant; requires judicial monitoring of the FBI’s use of its Carnivore e-mail tracking system; authorizes individuals to sue if the government leaks information gained through the new wiretapping and surveillance powers; and, adds a December 31, 2005, expiration date or “sunset” for most of the new wiretapping and surveillance powers.” (154)

The Federalist Society sees the need to trust law enforcement officers during times of national exigencies also respecting but not limiting all decisions on strictures of checks and balances if the nation’s security is directly threatened. Since national security is the most vital concern of the Executive, the F. S. said “that the anti-terrorism tools provided in the USA-PATRIOT Act of 2001 are strong, vital and necessary tools, provided in an extraordinary time of need.” (155) Ashcroft was concerned that the new battlefield that the terrorists would primarily engage was in the realm of technology, and that law enforcement had to undertake a new approach in combating this threat. Implementing new measures in the way of surveillance tools is what Ashcroft proposed, still fixated on the need to protect the traffic on the Internet and all computer networking systems frequented by terrorists. (156) Thus, on September 24, 2001, Ashcroft appeared before the House Committee on the Judiciary making his case for the passage of a bill which would in the short-run be known as the Patriot Act. He urged both the House and the Senate (September 24-25, 2002) to pass in expedient fashion, the Patriot Act giving the Department of Justice enhanced power saying that:

“The danger that darkened the United States of America and the civilized world on September 11th did not pass with the atrocities committed that day. They require that we provide law enforcement with the tools necessary to identify, dismantle, disrupt and punish terrorist organizations before they strike again. The highly coordinated attacks of September 11th make it clear that terrorism is the activity of expertly organized, highly coordinated, and well financed organizations and networks. These organizations operate across borders to advance their ideological agendas. They benefit from the shelter and protection of like-minded regimes. They are undeterred by the threat of criminal sanctions, and they are willing to sacrifice the lives of their members in order to take the lives of innocent citizens of free nations. This new terrorist threat to Americans on our soil is a turning point in American history. It's a new challenge for law enforcement. Our fight against terrorism is not merely or primarily a criminal justice endeavor.” (157)

As long as the law is adhered to under the Presidential authority of maintaining national security, the Federalist Society sees no problem with any provision which enhances the integrity of all Executive Departments, most of all, the Department of Justice to carry of these duties upheld in the United States Constitution is their argument. Placing the defense of national security as the most important call of duty for the Executive, the Federalist Society is often in direct disagreement with civil liberties groups such as the ACLU, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the Center for Democracy and Technology, arguing that the Justice Department is correct within the Patriot Act’s “surveillance provisions in the final legislation are by and large reasonable and measured, granting the appropriate legal powers to law enforcement investigators in a modern, digital age.” (158) For starters, the Federalist Society’s working paper’s authors scoffed at the assertions, again, made by the ACLU that judges would be ignored during investigations over whether there should be a “review or supervise these types of record searches.” Thus, the Federalist Society again argued in favor of computer laws to better assist law enforcement officials and adding to the items for a successful investigation. The Federalist Society did not see any political realism to the arguments made by the ACLU when it comes to making quick decisions in real time against a real threat. The Federalist Society in similar language of the Attorney General, backed the rules laid out by the Justice Department, while disregarding the cautious approach the ACLU endorsed. The White Paper stated that:

“in fast-moving investigations, like terrorist bombings cases, Internet communications can be a critical method of identifying conspirators to determine the source of the attacks. Delay encountered in court orders can often undermine the efficacy of a fast-moving investigation. Obtaining billing and other information can identify not only the perpetrator but also give valuable information about the financial accounts of those responsible and their co-conspirators. (159)

Ashcroft asserted that the DOJ had to move in a vigorous manner from complacent investigation practices and the focus on litigating crimes in criminal court to the understanding where these threats emanate from and deter them before they can hit America again. He said it was a different type of fight in this digital age and that the government had to better prepare troops and civilians against this terrorist threat by allowing new measures and more tools in this endeavor. Ashcroft said that:

“we are today sending our troops into the modern field of battle with antique weapons. It is not a prescription for victory. Terrorist organizations have increasingly used technology to facilitate their criminal acts and hide their communications from law enforcement... Intelligence-gathering laws that were written for an era of land-line telephone communications are ill-adapted for use in communications over multiple cell phones and computer networks -- communications that are also carried by multiple telecommunications providers located in different jurisdictions. Terrorists are trained to change cell phones frequently, to route email through different Internet computers in order to defeat surveillance.” (160)

Two weeks after the attacks on America, the controlling-mind of Ashcroft lobbied the Judiciary on behalf of President Bush to widen the legal scope of the war on terrorism. His strategy was based on the premise that “we cannot wait for terrorists to strike to begin investigations and to take action. The death tolls are too high, the consequences too great. We must prevent first -- we must prosecute second,” and reiterated this idea to the Senate. (161) With success, the Attorney General of the United States who heads the Department of Justice now, has more authority under the provisions of the Patriot Act. Ashcroft’s discretionary powers have now been increased. (162) He added that:

The fight against terrorism is now the highest priority of the Department of Justice. As we do in each and every law enforcement mission we undertake, we are conducting this effort with a total commitment to protect the rights and privacy of all Americans and the constitutional protections we hold dear. At the Department of Justice, we are charged with defending Americans' lives and liberties. We are asked to wage war against terrorism within our own borders. Today we seek to enlist your assistance, for we seek new laws against America's enemies, foreign and domestic. (163)

Senator Russ Feingold, Democrat from Wisconsin was not in agreement with the findings of the Federalist Society about the just nature of the Patriot Act Bill when he “concluded that this bill still does not strike the right balance between empowering law enforcement and protecting civil liberties.” He said that he had reservations that the administration would follow the rule of law in protecting civil liberties. In the pat these laws were not followed and the rights of American citizen were trampled on. Feingold said that this bill left many unanswered questions, past injustices, and all. He said that civil liberties are important and that this administration seems not to understand these rights. Feingold said about the balance of criminal law vs. civil law that:

There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War. We must not allow these pieces of our past to become prologue....Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people...That is why I found the antiterrorism bill originally proposed by Attorney General Ashcroft and President Bush to be troubling. ⁽¹⁶⁴⁾

Democratic Senator Pat Leahy had previously echoed the sentiments of Feingold pertaining to the ugly defamation of Martin Luther, King Jr. ‘s name by the same John Birch Society types who are now entrenched with law enforcement powers. The broadening of these powers leaves the door open for more abuses with civil rights. Leahy said that America must never forget that awful scenario in the days of King and the way law enforcement conducted their investigations. He said in concurrence with Feingold that:

The most notorious case was J. Edgar Hoover’s vendetta against Dr. Martin Luther King Jr. The Church Committee documented the FBI’s effort to discredit Dr. King by disclosing confidential information that was obtained from wiretaps and microphones targeted against him. The wiretaps were justified to the Kennedy and Johnson Administrations on the grounds that some of Dr. King’s advisors were Communists, but this excuse allowed the FBI to mount continuous political surveillance to undermine Dr. King’s effectiveness. The FBI disseminated allegedly derogatory information not only within the government, but to media and other private organizations including efforts to deny Dr. King the Nobel Peace Prize. Most vicious of all was the FBI’s preparation of a composite tape recording that was sent to him anonymously with an apparent invitation to commit suicide. During the 1964 Democratic National Convention in Atlantic City where the greatest controversy involved seating the Mississippi Freedom Democratic Party delegates, the FBI provided the Johnson White House a continuous flow of political intelligence from the wiretaps on Dr. King’s telephones in Atlantic City. (165)

Leahy pointed out that the “improper disclosure” from these FBI methods in passing along electronic surveillance data in the case of MLK, was done “to discredit Dr. King,” however, now in an unlawful manner, should the government “monitor the conversations of a person under the electronic surveillance procedures of title 18 or FISA and that information is disclosed without proper authority, the aggrieved person may recover money damages from the Federal Government.” (166)

Attorney General John Ashcroft said on December 6, 2001, that the President supersedes the authority of Congress in times of war which America was confronted with after September 11, 2001. This also would allow Ashcroft extended authority at the DOJ without having to consult Congress about issues that deal with national security measures. Ashcrift said:

There is no doubt that in cases of national security that some liberties would give way to maintain the assurance that national security is protected. The safety of all Americans is essential. This is not unreasonable but rather necessary to secure freedom for all. What is not reasonable, however, are laws without reason that compromises freedom, not for the common good, but a centralized interest. (168) According to a September 12, 2001, Washington Post poll article, the American Supreme Court by a margin of "two in three were willing to surrender some of the liberties we have in this country to crack down on terrorism," referring to the conservative Supreme Court of Chief Justice William Rehnquist. (169) The only opposition to the wants of the Bush administration on the court to the Patriot Act appeared to be Stephen Breyer and Ruth Bader Ginsburg who are the only authentic liberals. This support can allows Ashcroft the room needed without having to adhere to probable cause standards. Sacrificing liberty for security opens the door for the abuse of power as Ashcroft would have the support of the Supreme Court to detain those at his discretion. (170) The Judicial darling of the Republican Party, Chief Justice Rehnquist agreed with the Bush administration’s advocacy of the Patriot Act following 9-11. attacks on America. Rehnquist showed his favor of security over civil liberties, saying that “it is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime.” (171) From Bush to Ashcroft, the United States has played into the hands of its enemies by altering the Constitution with the Patriot Act. The Attorney General is just as culpable as any other individual in the Bush administration. As part of the Federalist Society’s ideological base, there is a high chance of probability that Ashcroft views his position as maintaining an ordered society and that rights of the accused as found in the Miranda ruling or privacy rights argued in Roe v. Wade as having little meaning when it comes to fighting the war on terror as stipulated in the Patriot Act.

After September 11th, the Bush administration made it clear that it was not at war with Islam. To make attacks on Islam in a degrading manner would be compromising the support he needed to invade Afghanistan. (172) But now, instead of targeting Communists and their political ideology, the Bush administration is definitely keying in on Arabs and their religious beliefs. (173) The main targets of the Bush administration’s war on terror have been “Arab Americans, Muslim Americans, Sikh Americans, and Asian Americans,” without the proper due process of law guaranteed by the Constitution for citizens and non-citizens, alike. (174)

Section 411

“When I think of the progress we have made over the last thirty years, I look upon our system of civil liberties with some satisfaction and a certain pride. There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties received in the United States during times of war and perceived threats to its national security.” (175)

Supreme Court Justice William Brennan in 1987 at an address to the Hebrew Law School in Jerusalem.

Section 411 of the Patriot Act is the type of ideological idea that right wing radicals want to impose on those who do not have a white male view or patriarchal view of the United States and can now deny entry on things that the State Department says is potential terrorist activity whether real or imagined. So if the Secretary of State thinks an individual is a threat to the national security of the United States that person will not be allowed entry to America. Any other foreign national who has ever given material support or espoused ideas to those terrorist groups that the State Department deems hostile to the security of the United States will also be refused entry into the United States. Therefore, speech made against the United States in this section which does not speak to anything but security dangers would be denied entry as well. Ashcroft was explicit in defending the government’s position by stating it was necessary to maintain the borders from terrorists who would inflict harm on the United States in why stricter guidelines were justified. (176)

In this measure the status of foreign nationals may bring about punitive measures regarding the Immigration and Naturalization Acts, “which says that aliens who are said to have given “material support” or “encouragement” the thirty-nine terrorist organizations that the State Department listed on December 5, 2001 at the request of Ashcroft whether it was in the form of making statements, giving funds or any other type of support with these organizations or even “alleged members” would be open to being held to “deportation” charges. Ashcroft thinks that by keeping these people out of America it will somehow reduce the threat of terrorism is a silly notion. The power of Ashcroft to determine guilt by association has already negatively affected Muslims in the United States. This brings to the forefront questions of whether free speech and the first amendment are not being respected? (177)Ashcroft needs to be reminded of the fifth amendment to the United States Constitution which speaks to the proper due process of law. The Bush administration has no shame when it comes to injecting words like intimidation, threats, disloyalty, as it uses law enforcement to arrest and detain American citizens who dare speak out. The Bush administration in their quest to achieve security in America have targeted people in all walks of life. Ashcroft is not bound by Congressional oversight which means he does not have to notify Congress when a foreign non-citizen is arrested. This authority gives the DOJ unilateral power against privacy rights and offers no accountability by the Congress to reduce potential abuses of the DOJ, FBI, or CIA. (178)Ashcroft in a vigilant tone said, “if you overstay your visas even by one day, we will arrest you. If you violate a local law-we hope that you will, and work to make sure that you are put in jail and kept in jail as long as possible.” (179)The ACLU also charged the Bush administration for having a contemptuous attitude for democracy as it questioned the validity of the Patriot Act and the legitimacy gave to Bush and Ashcroft. The ACLU said the Patriot Act is “a disrespect for the American value of equality under the law. Government enforcement strategies that target suspects based on their country of origin, race, religion, or ethnicity pose a serious threat to the civil liberties of citizens and non-citizens alike.” (180)

Ashcroft is a legitimate target of criticism because he pushed for an increased role for the Justice Department in the conduct of intelligence investigations, with limited Congressional oversight. (181)One week after the attacks on America, Ashcroft, proposed that Congress should expand the Omnibus Anti-Terrorist Act to widen the wiretap authority for the Department of Justice. His objective was the detention of more suspects who were violating their visas or immigrants thought to be involved with terrorist activity. These suspects would be held indefinitely and could be charged without an official crime which is not consistent with the Constitution. Ashcroft asked for new powers for Federal law enforcement officials so they would be able to gain easy access of citizen’s records, suspected of crimes or supporters of terrorism, void of the probable cause standard. He also proposed this with the provision that Congress do their duty with “lower barriers.” He demanded that Congress pass this law within three days of his request or be viewed as disloyal to American citizens. (182) In addition, to pro-right-wingers, the fact of the matter is that the secrecy in the Bush White House extends to the Department of Justice and Attorney General Ashcroft who indeed argued long, hard, passionate, and often angrily in pushing forward the Patriot Act. His relentless pursuit of hunting down terrorists also helped produce this scare-mongering bill, in and of itself. Ashcroft took full advantage of this situation to push through his own personal right-wing agenda as any political opportunist exploits as a result of the emphasis on national security concerns after the attacks on America. It was almost as if Bush, Ashcroft and others in the Executive told the Congress how to act and the laws they needed to pass rather than for allowing representative democracy of checks and balances to prevail over the dictates and fear-mongering tactics of the Bush junta. Thus, Ashcroft in his ideologue argumentative style told Congress what to do, as seen by the atrocious, yet cynical hearings that were made available to the American people that this threat was an rather than wait for Congress to catch its “imminent” one, and the response needed was “prudent,” as in passing in rapid fashion, the Patriot Act bill that would enhance his authoritative stature. (183) Because there was little debate in the House or Senate with most of the advice coming from the Executive Branch on how to prosecute with the next phase of the terrorism war, one may deduce from reason that Attorney General Ashcroft has great input as the head of the Justice Department. After all, it would be the Justice Department after the enactment of the Patriot Act which would control the anti-terrorist apparatus. The Department of Justice refused to make laws which included great breadth after the Murrah Federal Building was bombed in 1996, but passed was the Anti-terrorism and Effective Death Penalty Act. President Clinton was more recognizant of civil liberties value, then the present Bush administration. Thus, unlike the Bush administration, Clinton did present a temperate style of leadership even in the wake of tragedy by balancing both the terror threats and protecting civil rights by placing “a limit on the Justice Department’s ability to violate a citizen’s civil liberties in the name of fighting terrorism.” (184) Senator Feingold was well aware of the motives inherent with right-wing ideologies of the law and ordered variety. But he also had other criticisms of the DOJ, and their disregard for the legal process in America. He said that a provision proposed by Ashcroft would have “broadened the criminal forfeiture laws to permit - prior to conviction - the freezing of assets entirely unrelated to an alleged crime,” and this was not right in the legal sense. Again, the administration pushed through a bill in expedient fashion over the timing of an unfortunate tragedy rather than passing a bill that really spoke to combating terrorism but also balancing civil liberties. He said that these measures laid in wait since 1996 stating that:

The Justice Department has wanted this authority for years, and Congress has never been willing to give it. For one thing, it touches on the right to counsel, since assets that are frozen cannot be used to pay a lawyer. This proposal, in my view, was simply an effort on the part of the Department to take advantage of the emergency situation and get something that they've wanted to get for a long time. (185)

He adopted a militant attitude towards prosecuting suspects without probable cause from the start. Ashcroft said he would use the Patriot Act wherever necessary, saying it would be “the largest, most comprehensive criminal investigation in world history. (186) Do all Arabs and Muslims fall under the definition of the State Department? The State Department defines terrorism as having to constitute “a premeditated, politically, motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents.” (187) Well, Ashcroft justifies detention of the prisoners at Guantonamo Bay, requesting that Congress pass laws allowing the fingerprinting and photographing of people from Arab nations who the State Department lists as nations supporting terrorism. (188) Ashcroft proudly said that:

“Within hours of passage of the USA PATRIOT Act, we made use of its provisions to begin enhanced information sharing between the law-enforcement and intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoeneas for payment information. And we have used the Act to place those who access the Internet through cable companies on the same footing as everyone else.” (189)

Attorney General Ashcroft now has the ability to obtain sensitive information of American citizens by listening to conversations, including with lawyer-client, monitoring computer use, and detaining suspects who are deemed to be terrorists by the definition of the State Department to indefinite incarceration. (190) In response to Ashcroft’s arguments of absolute Executive authority, the ACLU said that the Patriot Act shows most definitely, “a disdain for the checks and balances that have been a cornerstone of American democracy for more than 225 years...Specifically, the administration has frequently bypassed Congress, while both the Executive and Legislative branches have weakened the Judiciary’s authority to check government excess.” (191) Section 904 of the Patriot Act stipulates that the Secretary of Defense, the Attorney General, and the CIA Director are allowed to hold back intelligence reports to the Congress until February 1, 2002, or if necessary, beyond this date. Ashcroft has wider authority if he determines there is sufficient data for suspecting criminal activity, although with his discretion, but these reports do not have to be made public if this would “impede the work of officers or employees who are engaged in counter-terrorism activities.” (192) This limits Congressional oversight and inquiry and allows the Bush administration to proceed under the shroud of secrecy. And, with the Patriot Act, the Justice Department, not the Immigration Naturalization Service has the jurisdiction over the future of immigrant status of foreigners inside America, which is one more example of the “consolidation of power” with the DOJ in the war on terror as it micromanages other departments in the government. (193)

The centralization of power and the new role of the CIA in domestic surveillance activity is supported primarily, by Ashcroft. (194) Ashcroft has been given more authority by Congress to investigate not only terrorism, but, crimes against public officials and property, which extends into foreign territory. (195) The Patriot Act now allows more power in surveillance and wiretapping while it broadened domestic law enforcement and foreign intelligence agencies to conduct search warrants under the authority of the Attorney General. This gives the law enforcement community more latitude, issuing subpoenas, while lessening the role of judges in this role. (196) Aden and Whitehead, point out that the extended powers given to the CIA are limited under Section 403-3(d)(1), which says the CIA “shall have no police subpoena, or law enforcement powers or internal security functions.” Despite these factors, the CIA will now have more power then either the FBI or the Justice Department in foreign and domestic cases regarding surveillance activity. This new power of the CIA will be tested to see if they will not resume their old ways of spying on innocent Americans or opening files and dossiers when there has been no crime committed. There is great concern that the CIA investigating abuses and harassing citizens will happen once again. (197)

The CIA now under the direction of the Justice Department is now able to gather information domestically as it works with other intelligence agencies. This new role of the CIA in domestic intelligence deviates from Church Committee hearings which made provisions to guard against abuses in these agencies during the 1970s. The CIA can now investigate law-abiding American citizens without the standard of probable cause and may collect data where no proof of a crime exists. Contrary, to the findings of the Church Committee, the CIA now has carte blanche to operate freely as they want because there is very limited checks on their behavior with no real oversight by Congress or Judicial Review. (198) Innocent people were profiled by domestic law enforcement officials who had the audacity to under national security cover to open files on. Leahy pointed out the Church Committee exposed the actions of “the FBI’s internal security and domestic intelligence programs compiled massive files on activities protected by the First Amendment and the political opinions of Americans.” He said both political parties needed to understand that with the surveillance measures of the Patriot Act that America could be regressing to a time preceding the Church hearings. Leahy said that the nature of those investigations would never be acceptable and that it was the duty of the Congress to ensure that there was not a repeat of this very ugly time in America. Leahy stated that:

“Under presidents of both parties, these agencies disseminated information to the White House about the lawful political activities and opinions of critics of Administration policy -- all under the rubric of protecting the national security. The scope of intelligence gathering swept up environmental groups, women’s liberation activists, and virtually any organization that mounted peaceful protest demonstrations.” (199)

The radical nature of Attorney General Ashcroft was presented to the American public and the Congressional Committees on December 6, 2001, warning American citizens or groups they should not disagree with the Bush administration. Denouncing debate, Ashcroft, dared citizens not to dissent against the policies of the Bush administration, “since lives and liberties depend upon clarity, not obfuscation, and reason, not hyperbole.” (200) According to Ashcroft the actions would not be aimed at law abiding citizens, but rather only those wishing to do harm. He said that:

Each action taken by the Department of Justice, as well as the war crimes commissions considered by the President and the Department of Defense, is carefully drawn to target a narrow class of individuals -- terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention strategy targets the terrorist threat. Since 1983, the United States government has defined terrorists as those who perpetrate premeditated, politically motivated violence against noncombatant targets. My message to America this morning, then, is this: If you fit this definition of a terrorist, fear the United States, for you will lose your liberty. (201)

Ashcroft also put both political and peace activists on notice saying they would be watched by the government, as well as being viewed as disloyal, unpatriotic, and a threat to America. In this case Ashcroft played judge, jury and executioner. Ashcroft used political rhetoric, comparable to the McCarthy period using words such as “unpatriotic” and “unAmerican.” This is not an exaggeration as the testimony of Ashcroft before Congress answering any person or group who dared criticize the Bush administration or the Department of Justice. He said that:

the Department of Justice has sought to prevent terrorism with reason, careful balance and excruciating attention to detail. Some of our critics, I regret to say, have shown less affection for detail. Their bold declarations of so-called fact have quickly dissolved, upon inspection, into vague conjecture. Charges of "kangaroo courts" and "shredding the Constitution" give new meaning to the term, "the fog of war."

In a very harsh tone, Ashcroft gave a stern warning to Americans who questioned the Bush administration’s plans to fight terrorism, insinuating Americans need to be good patriots. He said “we need honest, reasoned debate; not fearmongering. To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil.” (204) Statements like these from Ashcroft can be viewed as an intimidation tactic that challenged the importance of public debate, as well as the legal questions for those who speak out. Aden and Whitehead point out that Ashcroft departed from the principle of American’s to retain their “right to dissent without fear of retaliation.” (205) He also said that people who spoke out against the Bush administration “encourage people of good will to remain silent in the face of evil.” (206) The ACLU has taken issue with Ashcroft’s questioning the patriotism of citizens who criticize the Bush administration’s policies as being enemies of the administration, terrorist sympathizers, or disloyal Americans. (207) Ashcroft reported to the Congress on 6 December of 2001, making declarations that significant gains had been made already because of the new provisions in the Patriot Act pertaining to the apprehension of suspects, saying, that:

We have launched the largest, most comprehensive criminal investigation in world history to identify the killers of September 11 and to prevent further terrorist attacks. Four thousand FBI agents are engaged with their international counterparts in an unprecedented worldwide effort to detect, disrupt and dismantle terrorist organizations...We have sought and received additional tools from Congress. Already, we have begun to utilize many of these tools. Within hours of passage of the USA PATRIOT Act, we made use of its provisions to begin enhanced information sharing between the law-enforcement and intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. And we have used the Act to place those who access the Internet through cable companies on the same footing as everyone else. Just yesterday, at my request, the State Department designated 39 entities as terrorist organizations pursuant to the USA PATRIOT Act. 12-6-01

Having Bush and Ashcroft saying who is criminal without fact or a fair trial is not only un-constitutional, but it violates the essence of human rights and constitutional law. (208) Both have their supporters as well as their detractors. In the propriety of fairness and objectivity, one of their most outspoken advocates will be discussed in her defense of the right-wing’s extreme positions since 9-11. Ann Coulter ardently defended the actions of the Bush administration and especially the decisions made by Attorney General Ashcroft after the attacks, and consequently, with the Patriot Act. Coulter has some extreme views which also can sound threatening with violent-like tones.  In objective terms, there was very limited questioning of Ashcroft who did not make himself available for more than an hour of testimony in the Senate’s Judiciary Committee. The questioning of Ashcroft was limited and contrived to the wishes of the Bush administration. During the questioning of Ashcroft there were time limits placed on the question and answer session. In this hearing there was “the customary five-minute rule--no member could question Ashcroft for more than five minutes” leading to ineffective questioning despite the critical nature of this bill before Congress. The Democrats did not ask tough questions overall and acted conciliatory in their own political quest not to look weak in fighting the war on terror or to divide the nation as some Senators warned the Democrats not to do. Democratic Senator Zell Miller of Georgia gave Bush and Ashcroft unequivocal support and blasted anyone who dared criticize inferring they would be aiding killers if they went against Ashcroft’s pronouncements. (209) Miller said "let Attorney General Ashcroft do his job.... These nitpickers need to find another nit to pick. They need to stop protecting the rights of terrorists." (210) In line with the Bush mantra of fighting terrorists Senator Orrin Hatch, also on the Judiciary Committee and Federalist Society Member, said that Ashcroft should not be subjected to an "aggressive oversight" campaign by Democratic Senators since the Executive needs to do their job, free of prevention by more legislation against frivolous requests. Hatch viewed the lack of cooperation with Ashcroft’s requests as being simply “counterproductive” to the security of the United States. He said this was making the Justice Department waste “all its time responding to inquiries from our committee...and none of its time actually tracking down terrorists.” (211) Not only did Ashcroft defend the Bush administration’s point of view effectively, but he was given a free pass by the spineless Democrats, minus one, in the Senate, but more importantly, was not subjected to any tough questions by Democrats. During the hearings on the Patriot Act, Senate Democrats put up little resistance in the Judiciary Committee as well as on the floor, allowing Attorney General Ashcroft to slide by with ease, and in a conciliatory, deferential, manner. David Corn of the Nation said that “as he defended the Administration's policies, Ashcroft ably diverted or absorbed most of their thrusts. He was rarely placed on the spot. The Democrats' criticism was generally tempered and dispassionate.” (212)

On this same day Russ Feingold attempted to ask Ashcroft reasonable questions. The unchecked authority of Ashcroft makes what Thomas Jefferson said in the draft of the Kentucky Resolutions in 1798 even more poignant, saying that, “whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The rights of due process of law, in this new state of security alert, in sending immigrants back to their home country after keeping them in detention without any violation in the law seems to be a direct effort to “harass, threaten, and subjugate,” the Muslim population to ensure America’s security. This was a concern of Feingold, but not Ashcroft. Although basic American liberties have been put on hold in favor of laws that are supposed to guarantee that the safety of Americans are never again injured cannot be assured one hundred percent. (214) Arab people were targeted and thrown off of airplanes because of their ethnicity, even if they were law abiding American citizens. In this mass hysteria, clear thinking people have given way to fear, panic, and the pathology of paranoia. (215) Ashcroft thought he needed to be the one to determine which documents would be released or disclosed to Congress as it related to sensitive classified documents and if it should remain sealed rather than place the security of America in serious danger. (216) As it related to Congressional oversight, on the matter of protection, Ashcroft was consistent with the ideologues in the Federalist Society, said:

“Congress’s power of oversight is not without limits....In some areas...I cannot and will not consult you....I cannot and will not divulge the contents, the context, or even the existence of such advice to anyone---including Congress---unless the President instructs me to do so. I cannot and will not divulge such information, nor do I believe that anyone here would wish me to divulge information, that will damage the national security of the United States, the safety of its citizens or our efforts to ensure the same in an ongoing investigation.” (217)

Ashcroft was not able to qualify to Russ Feingold what legal standard prevented him from releasing the names of detainees, as he argued that it was privacy restrictions that gave him that right. Feingold questioned Ashcroft on the legal status of the detainees and that they needed to “be informed of their right to an attorney and the possibility of pro bono representation.” Despite Ashcroft’s inability to provide a legal justification for not releasing names, the Patriot Act went forward. Although Judiciary Committee Chairman Leahy did not criticize Ashcroft over remaining loyal to Bush’s policies without protest or dissent lest, branded as un-American or un-Patriotic, one Russ Feingold did take issue with those words. (218) Feingold was also correct about the manner Ashcroft would be working to breach normal attorney-client privilege with the monitoring system which was set-up. Ashcroft even admitted in testimony that although “all persons being detained have the right to contact their lawyers and their families,” that “each prisoner has been told in advance his conversations will be monitored.” (219)

Feingold according to eyewitness Corn, said that the Bush administration, “appears to be trotting out phrases to stop people from talking about these issues.... We have to stand up to that.” (220) The Washington Post’s Editorial entitled, “The Ashcroft Smear,” was swift in its rebuke of Ashcroft’s inflammatory remarks along with the fact that Ashcroft did not want to be questioned about the “tactics” of any terrorist investigation. Ashcroft was criticized as well as Bush in their limiting their “overbroad order on military tribunals,” that needs to be changed. The editorial said which I agree with, that, “Mr. Ashcroft may not like the criticism. But his job is to defend dissent, not to use the moral authority of his office to discourage people from participating in one of the most fundamental obligations of citizenship.” As the post points out the arrogance yet severity of the language used by Ashcroft before the Senate Judiciary Committee brings out many concerns about his leadership in troubling times, and “explain perfectly why many people have concerns about his leadership in this uncertain time. It is the attorney general's function, or should be, to ensure that a lively debate over policy is protected -- even during wartime. Mr. Ashcroft instead challenges the patriotism of those who dissent.” (221) In contrast to Ashcroft, “it is the press's job to raise questions,” and what seems to be “pesky procedural niceties” even during a hard time when the “defense” of civil liberties or asking questions “is not the highest value on other people's minds.” The editorial showed concern for existing legal precedents, while criticizing Ashcroft’s warnings, in the following passage, that:

“These issues need to be discussed -- and seriously -- before policy is changed, because these policy changes, whether warranted or not, will affect many lives. They place significant new powers in government hands. It is not disloyal -- in fact, it is a form of patriotism -- to ask whether government is getting the powers most appropriate to the task, whether it is using them wisely, whether it may be missing important potential strategies, or even whether it is going off half-cocked against the wrong people. It is worth noting the diversity of voices that have raised such concerns. Long-serving former law enforcement and intelligence officials have spoken up publicly, worrying that some policy changes may not help, and some may even hurt, the domestic war against terrorism.” (222)

There are protections in the first amendment which clearly protects free speech which is supposed to not allow Congress to make laws which will have the regrettable consequences which alters the people’s rights to “the freedom of speech, or of the press; or the right of the people peaceably to assemble.” (223) Although it was once fashionable to criticize the American government more than thirty years ago, has now turned into people being un-American and un-Patriotic, if one chooses dissent over agreement with national government policy. . The rhetoric that liberals and Democrats are not real Patriots has been promulgated by the Right wing talk show hosts nightly and daily and has been reinforced by Bush, Cheney, Ashcroft, Rice, Fleischer, and the United States Patriot Act. Michael Kinsley eloquently points out that since September 11, 2001 the tolerance of free speech has eroded in spite of the fact that the “United States political system protects freedom of speech from formal suppression better than any other nation on earth.” But the most salient point which should not be lost out on the likes of the radical right, who are on the front lines of this cultural war that they say is connected to the political structure and must not be ignored although these rabid conservatives hate the thought of critiquing not government or culture, only that which is not favorable to their thesis of what America should be or look like. Kinsley brings out a very interesting point about America intolerance which is that: “In a country such as Great Britain, the legal protections for free speech are weaker than ours, but the social protections are stronger. They lack a First Amendment, but they have thicker skin and a greater acceptance of eccentricity of all sorts.” (224) San Francisco Chronicle religion writer Don Lattin after studying both extreme movements, said that there is “deep contempt that the two American religious leaders have in common with the Taliban toward those who might view religion in a different way”

Congresswoman Barbara Lee, Democrat in the H. R. from California, was the lone vote which opposed the Bush administration’s immediate calls for war in Afghanistan because she needed more authenticated and substantiated proof of the real enemy. (225) She was vilified by the American media and all the right wing talking heads. The Bush administration opposes political debate against their ideological pursuits. The brevity of former talk show host Bill Maher of Politically Incorrect engaged in an exercise of free speech which got him eventually fired for what was seen by the Bush White House as an anti-American statement. ABC, an independent news organization, which depends on corporate advertising money linked to the Republican Party was in a dubious bind. (226) Maher with great insight but a sarcastic comment ultimately got him fired, insinuated that Americans haven’t been so brave in the past saying, that, “we have been the cowards, lobbing cruise missiles from 2,000 miles away. That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly.” ⁽²²⁷⁾

Bush’s press secretary Ari Fleischer had some harsh words for Maher and any others who dared to speak out. Fleischer said that in a time of war, “the reminder is to all Americans, that they need to watch what they say, watch what they do, and that this is not a time for remarks like that.” (228) The Bush administration would rather hide negative information from the public record than own up to their own dark comments for the historical record. In a very interesting note which should be mentioned is that the Bush administration concealed the statements that Ari Fleischer said following the remarks made by Bill Maher which speaks to their government in secrecy charge that critics have made against this administration. When questioned about this, Fleischer claimed the transgression was inconsequential but the tone was clear which has been consistent with the Bush administration. Agreement is loved and criticism is loathed. Loathed so much that one is viewed as anti-American. (229) In the press conference which questioned White House Press Secretary Ari Fleischer on the matter of Maher’s comments being wiped out of the record, he made light of the major omission seen as only a minor transgression from the same group of people who are promoting academic honesty and integrity in the classroom. Thus Fleischer on October 1, 2001 the exact press question, (unidentified reporter in transcript), the answer which followed:

Q Ari, you might have already answered this, but last week when you were asked about Bill Maher, you said, in the context of that answer, you said that Americans need to watch what they say and watch what they do. That line for some reason wasn't in the official White House transcript. Do you know why?

MR. FLEISCHER: I think we addressed that last week, Ron. And the first I heard of it was when I came back from my trip to New York that day, that it wasn't there. And if you take a look at transcripts, unfortunately, every now and then there is a mistake in it. And that's what I think happened. It was a mistake. (230)

Contrary, to popular opinion, and the mass hysteria in the United States following the attacks inside America, the Bush administration adopted an inane interpretation of the first amendment actually questioning the rights of individuals to be able to “advocate ideas,” and to “speak freely,” without government interference. In addition, if one’s rights were violated that citizens would not be given the short shrift but taking legal recourse to “petition the government,” or the court for a “redress of grievances.” (231) These are rights of American citizens under the Constitution whether or not September 11, 2001 occurred. The Bush administration has attempted to squelch the rights of the American people to criticize policy choices, or laws passed, which harm people’s public or private life. This is wrong because people have a right to engage in political discussion whether in a college classroom, a restaurant, or on the Internet, free of government intrusion. The Bush administration has abrogated the Constitution but the apathetic American people need not allow their rights of freedom and liberty to be mitigated by the government. (232)

"We must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government."
-- James Jackson, First Congress, 1st Annals of Congress, 489

"There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."
-- James Madison, speech to the Virginia Ratifying Convention, June 16, 1788

The Congress has to be held accountable for their countenance to the Bush administration for voting in the affirmative regarding the Patriot Act. There was hardly any intense debate on the requests made by Ashcroft in Congress. In this new age of the terror war, do not expect that John Ashcroft will give individuals a fair hearing either in relation to the U.S. Constitution, or the provisions of the Patriot Act. With the Supreme Court being largely influenced by right-wing Federalist Society members, Justices Scalia and Thomas, as well as right-wing ideologue, Chief Justice Reinqhuist, one needs to understand that in all probability, the Patriot Act will be upheld. There is little doubt that in the age of panic and hysteria, that a right-wing Supreme Court will not reflect the right-wing ideologues in the Bush administration. The lower courts packed with Federal Judges appointed by Reagan and Bush I, rulings will most often be tilted in favor of right-wing interests. (233)

It was Attorney General Ashcroft who had pushed ardently for this new anti-terrorism bill immediately following the attacks. There were some representatives who did not like what they perceived to be portions of, trampling on the Bill of Rights, from Ashcroft’s requests. House Majority Leader Dick Armey- R-Texas and Bob Barr R-Georgia, along with Maxine Waters D-California and Barney Frank, all worked as a team to look at Ashcroft’s requests more closely. This was seen as a very unique foursome in the House Judiciary Committee attempting to find common ground on issues they were greatly concerned. In short, Senate Judiciary Committee Chairman Patrick Leahy caved into pressure by the Bush administration, mainly Ashcroft. (234)

In short, void of sound debate, rushed law is most often bad law, especially when it is passed without deliberation or real public debate. Law devoid of checks and balances is also, dangerous, if not downright, irresponsible. The Congress and the Bush administration proposed and subsequently agreed to the Patriot Act at the most vulnerable and trying times in American History, which has only compromised freedom in a new state of paranoia. I argue that Congress along with the Bush administration which passed the Patriot Act, has allowed a quite severe set of laws that supersedes the U.S. Constitution as well as its guaranteed protections, that this nation was based upon. (235)

The United States Patriot Act is an attempt to give America the security it lacked prior to the attacks, even as it undermines the liberty of all Americans in the process. The American Civil Liberties Union, has the best analysis of the Patriot Act in the manner that it does not protect Americans from being harmed or injured in the future. The report taken from Insatiable Appetite said that “countries to insist that the dichotomy between security and liberty is false: we believe that we can be both safe and free, and that government policies should not be based on the myth that liberties must be curtailed to protect the public.” (236)

There was scant debate in Congress with the passage of the Patriot Act, which in any time becomes the dereliction of public duty and the failure to serve the American people. In this reckless bill, short of proper thought in Congress, the American people were not served in the best interests by those who have made the promise to faithfully uphold the Constitution of the United States of America. (237) The first Amendment to the United States Constitution reads that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Senator Orrin Hatch (R-Utah), proposed a Floor Bill Amendment two days after the attacks to ask to expand government authority to intercept oral and electronic communications.” (238) Hatch was not the only Senator who wanted “the right tools to hunt down and find the cowardly terrorists who wreaked such havoc,” but he had other Republican Senators, including President Bush, who had already vowed to bring these people to justice. Fellow Senator and Republican from Arizona, John Kyl, agreed saying that: “Our constituents are calling this a war on terrorism. In wars, you don’t fight by a Marquis of Queensbury rules.” Hatch’s floor amendment passed, of course, two days after the attacks with the Patriot Act to follow in its passage just one month later. (239)

Congress obviously failed in their duties to deliberate as they voted in rapid fashion for a shaky piece of legislation. The person most responsible for allowing this bill to pass without calling for a real debate on the floor was then-Majority Leader of the Senate, Tom Daschle, Democrat of South Dakota and big critic of President Bush. On this issue, he caved into political pressure, acted anything but a statesmen, and was complicit with the Bush administration in allowing the abridgement of the Constitution. Daschle’s actions forever weakened his own ability to exercise Congressional oversight in the Senate as it relates to the actions or decisions of the Department of Justice or Attorney General Ashcroft. Daschle in no small measure as well as his other colleagues in Congress lack any moral legitimacy questioning what Ashcroft now implements as they waived their power to the DOJ but are now culpable in having reduced the liberties of law-abiding citizens. (240) Senator Daschle did not help the image of the Democrats as the great defenders of security or liberty. In fact, by his inaction the Democrats acquiesced to President Bush’s every wish without considering where this bill and the war on terror would take America. Even in agreement, the Democrats which had the slim majority in the Senate would not hold it by the time the November 2001 elections came and gone. Had the Democrats appeared stronger while simultaneously not signing every demand of the Bush White House, perhaps, the majority would have remained in Democratic control. While Daschle was getting criticized daily on right-wing radio for asking even the most minimal questions of the Bush administration, he also seemed to ignore members of his own party. Daschle also had “tabled” the requests of fellow U.S. Senator Democrat-Wisconsin, Russ Feingold who wanted to attach some amendments to this bill which demonstrated a clear disregard for the deliberation process by ignoring this issue. Where Daschle failed to act in a deliberate manner in the Senate, the House Judiciary Committee led by the Republican majority had the sense and legislative know-how to deliberate before agreeing to any expedient or hasty measures. The Republican-controlled House of Representatives, amended the bill to make sure that there were some, although very limited, protections pertaining to civil liberties. These were the Sunset provisions which has clauses that on December 31, 2005, some sections will expire, but all. It is worth noting that minus the roving wiretap expansion all the other sections of the bill are permanent. Therefore, these laws which will be terminated applies to only a small fraction under the surveillance and eavesdropping provisions. Representatives Barr and Armey were able to work with finer the details to ensure that some sunset provisions were included. Daschle‘s lack of will to fight harder only weakened the image of the Democrats as being afraid to confront President Bush on national security matters, while at the same time making it appear that the Republicans are best able to defend America despite the many flaws of this preposterous notion. (241)

The Patriot Act originated in the House of Representatives as H.R. Bill 2975 while the Senate’s bill known as S. 1510 was passed into law on October 11, 2001. Although seemingly simplistic because it was passed so quickly, rather complex and difficult when analyzed short of proper debate and deliberation. On October 2, 2001 the infamous road to the passage of the Patriot Act began when U.S. House of Representative member James F. Sensenbrenner, Republican from, Wisconsin sponsored the H.R. Bill 2975, but the committee vote was taken the next day. On October 3, 2001, the House Judiciary House Judiciary subcommittee passes House Representative bill 2975 in an unanimous thirty-six-to zero vote. This was called the “Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001.” This was a bipartisan proposal that passed the subcommittee with Representative John Conyers, Democrat from Michigan joining Sensenbrenner in sponsoring this bill. This bill would move to a full House floor vote but was off to a splendid start with its twenty six co-sponsors (242) as well as these two House members who proposed the legislation. (243) After this vote, in a secret meeting the House Republicans met with Bush administration to agree on a new bill. At this point the Republicans from the House forgot about the vote taken in the Judiciary and went along with the Bush administration. The Senate did not have a Judiciary Committee vote on the Patriot bill, before it came back from the House for a full Senate floor vote. (244)

On October 11, 2001, Senator Daschle introduce the Senate’s version of the Patriot Act known as S. 1510. The United States Senate, of which Mr. Daschle did so to promote his own political agenda along with support from the Republicans and the Bush administration, introduced this bill known as S 1510 which was more in line with the wishes of the Bush administration following the 9-11 attacks on America. There were twenty-five co-sponsors of S 1510. (245) The vote taken here can be looked up under Roll Call Vote number, 302. Despite the attempts to bring forth amendments, all of these items were rejected in expedient fashion on the same day leaving no doubt that the administration was on a fast track mission to pass the Patriot Act, sensing this opportunity was lost in 1996 and would not allow history to repeat itself. Bill passed in Senate with a vote of 96 for and one against. The lone dissenting vote against this bill was Russ Feingold. (246) Thus, on October 11, 2001, the Senate passed this abridged version of what the Bush administration had wanted with a ninety-six to one vote with the only dissenting voice being Russ Feingold, in what too many refer to as the “world's greatest deliberative body.” Feingold said that this was an attack on the United States Constitution. He said in defiance on the Senate floor that “It is crucial that civil liberties in this country be preserved. Otherwise, I'm afraid terror will win this battle without firing a shot.” He also said that the Patriot Act, “goes into a lot of areas that have nothing to do with terrorism and have a lot to do with the government and the FBI having a wish list of things they want to do, whether it be getting into people's computer use.” (247)

There was backroom political games taking place and the right-wing dogmatists won the day. When the House voted on this bill on October 12, 2001 they were voting on a bill that was devised just the night before when the Republican leadership met with the Bush administration and came up with a new bill. House Representative John Conyers D-Michigan said that there were not many copies of the bill made available to review before the vote was taken in the House of Representatives. This was also the case for many of the representatives since the bill was introduced was so quickly passed into law. After the Patriot Act passed in the House ready to be signed into law by President Bush, there were ill feelings with many members of the House Judiciary Committee. Barney Frank, D-Massachusetts said that this vote was not deliberate in thought saying, “this 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.” (248)

Thus, the Senate vote was followed by the full House vote. On October 11, 2001, the House Judiciary Committee passed H.R. 2975, followed by the House of Representatives on October 12, 2001. (249) This bill still known as H.R. 2975 passed in the House with support from both Democrats and Republicans, with overwhelming bipartisan support from both Republicans and Democrats. This vote can be verified under the Roll Call number 386 of the 107th Congress. This bill passed with a vote of 337 for and 79 against, in an outcome that was favorable to the Bush administration, for this 175-page document. (250)

One needs to understand that the Bush administration exuded great influence and direction in the promotion of this bill. There was no room for any substantial debate. Not only did the Bush administration carry great influence with directing the House, but they also were able to persuade the Senate’s Judiciary Committee as well. The actions of Ashcroft leading to the compromise of civil liberties along with an apathetic American public will in the long-run ask questions to an incompetent, fearful, political wielding Congress for the outcome of this poorly devised bill in the absence of any real political debate on the Congress floor. (251)

On October 24, 2001, at 11:05 a.m. EST., the official start of altering the United States Constitution got underway in the United States House of Representatives. The Bush administration had finally received the police powers that had been put in hold ever since the Church Committee hearings of the 1970’s that right-wing proponents of law enforcement had always resented. The success to pass H R 3162 was imminent under Roll Call Number 398, on the “motion to suspend the rules and pass the bill with the title, “to deter and punish terrorist acts in the United States and around the world.” The vote in favor of this bill in the House was 357 votes in favor against sixty-six, in opposition to the measure. The Republicans acting as “good foot soldiers” for the Bush administration did not waver in their support with 211 votes for the bill with only three voting against. The Democrats had 145 members voting “yes” to this bill while sixty-two voted voting against Roll Call Number 398, in the House. There were nine abstentions or no-votes overall, five in the Republican Party and four opposing on the Democrat side. (252)

On October 25, 2001, at 1:54 PM in the early afternoon hours the vote for the Patriot Act was passed in the United States Senate, thereby, solidifying the foundation of this bill that started with Representative Sensenbrenner. Thus, acting upon the passage of the HR Bill 3162, the measure number of “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001)was passed under the measure title of a bill to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes” (253) Under Vote Number 313, the Senate vote was ninety-eight in favor, one opposed to the measure, Feingold of Wisconsin, and one not voting, Mary Landrieu, Democrat from Louisiana. (254) Interestingly, enough, John Conyers Democrat from Michigan, who had helped Sensenbrenner with the original proposal voted against this measure in H.R. Bill,

3162. (255) Thus, the House of Representatives and the Senate officially passed the Bill known as H.R. 3162 which combined both the S. 1510 and H. R. 2975 on October 24-25, 2001. The Senate agreed to the resolved differences that the Bush administration had with the House Judiciary Committee, but, Ashcroft’s objectives were successful. (256) The USA Patriot Act, a 342-page document, large in detail and content, is known by its technical name, Public Law 107-56, entitled, “The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” only awaited the signature of President Bush. The House Bill, H.R. 3162, was signed into law by President Bush on October 26, 2001. This bill has now radically altered the United States Constitution. (257) The Bush administration was successful in passing the un-Constitutional Patriot Act. (258)

Perhaps, the most striking development in the Democratic Senate was the silence of liberal democrats minus Russ Feingold and the sixty-six Democrats who voted against the bill in the House. Otherwise, their job as the loyal opposition was loyally silent, as the weak are to the predators. (259) Except for Russ Feingold the Democrats were notoriously absent in the public debate process. Because of this idle debate, (minus Russ Feingold), the government is now able to move freely to monitor one’s e-mail activity as well as other electronic communication devices. To make matters worse or to rationalize incompetence of their decisions, the Congress had their own fait accompli to fall back on. Their poor decision making capacity had an obvious excuse that is more distasteful than a lie being told as the truth. The anthrax attacks led to many in Congress to not read the act or the summaries which also was void of debate in the House of Representatives. There was some debate and outcries against the Patriot Act in the Senate but none in the House of Representatives. (260) Feingold criticized the Bush administration’s calls on a bill he said that was improper. He said he did not appreciate the process of which the administration handled the passage and signing of the bill. He said that:

“it was in reviewing those provisions that I came to feel that the Administration's demand for haste was inappropriate; indeed, it was dangerous. Our process in the Senate, as truncated as it was, did lead to the elimination or significant rewriting of a number of audacious proposals that I and many other members found objectionable.” (261)

Although, Patrick Leahy, a Democrat from Vermont, also, weak-minded, political partisan chose to go along with the tide of public opinion which favored increased “security” measures to combat the terrorist threat was the decisive factor in going along with the Bush administration. With the lack of a full investigation of September 11th, the Patriot Act passed under the guise of pacification with the inclusion of the Sunset clauses, which Leahy went along with. This did not convince Feingold because it does not cover all the sections of the bill. Too few, rather too many, sections do not fall under the Sunset provisions. Feingold believes this bill compromises civil liberties and defended his lone vote against this measure in the Senate with the valor of a patriot. (262) Voting strictly on moral conscience rather than the politics of the moment, he said that:

“There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war....Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition acts, the suspension of habeas corpus during the Civil War, the internment of Japanese Americans, German Americans and Italian Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr.” (263)

The expedient nature of passing the Patriot Act void of in-depth discussion minus the otherwise regular committee hearings did not question or answer formidable concerns often present in political debate. The speed of passage short of probing inquiry led the majority of lawmakers to not read the critical House version of the Patriot Act before the final roll call votes were taken. These legislators did not want to risk being viewed as “soft on terrorism,” which is why, perhaps, the Senate allowed this bill to go past their own Judiciary Committee for “markup” and change-making before it was voted on. (264) Leahy claimed that the Democrats were subjected to a double-cross by the Republicans. In the end, although this bill was an improvement over the original version proposed, according to Leahy, the Republicans thwarted any attempts to deliberate in a more complete mannerly. He said he was “disappointed that the commitment we received to hold a conference -- at which these proposals could have been considered more fully -- was not honored.” The only provision that Leahy was able to hold onto as far as some semblance of Congressional oversight was “the sunset provision included in the final bill calls for vigilant legislative oversight, so that the Congress will know how these legal authorities are used and whether they are abused over the next four years,” along with checking to make sure “law enforcement is responsive to congressional oversight and inquiries on use of these new authorities and that a full record is developed on their efficacy and necessity.” (265) In addition, to Leahy’s disgust with the lack of proper procedure and process, Feingold was appalled that the Bush administration had the audacity to propose this bill “on September 19, and wanted us to pass on September 21,” Feingold said that the bill “does not strike the right balance between empowering law enforcement and protecting constitutional freedoms,” such as “expand(ing) the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search.” (266) Feingold referred to the words of Justice Brandeis about the Bush administration’s decision to impede technological freedom on the Internet and other modes of communications as well as privacy rights and personal liberty with this new anti-terrorism bill. In a 1928 dissent Feingold reminds the American people what Brandeis said about the potential abuses of over-extended governmental authority. Brandeis 1928 dissent said:

"The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it enabled to expose to a jury the most intimate occurrences of the home. . . . Can it be that the Constitution affords no protection against such invasions of individual security?" (267)

Feingold had harsh words as he admonished the Bush administration’s manipulative arguments. He chided them as moving ahead in such expedient fashion aided, by their point man, Sensenbrenner, in the House of Representatives as well as Ashcroft who lobbied in such a rigorous manner, for these new police powers. Feingold said of the Bush team approach that:

The Administration's proposed bill contained vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI's wish list that Congress has rejected in the past. You may remember that the Attorney General announced his intention to introduce a bill shortly after the September 11 attacks. He provided the text of the bill the following Wednesday, and urged Congress to enact it by the end of the week. That was plainly impossible, but the pressure to move on this bill quickly, without deliberation and debate, has been relentless ever since. It is one thing to shortcut the legislative process in order to get federal financial aid to the cities hit by terrorism. We did that, and no one complained that we moved too quickly. It is quite another to press for the enactment of sweeping new powers for law enforcement that directly affect the civil liberties of the American people without due deliberation by the peoples' elected representatives. Fortunately, cooler heads prevailed at least to some extent, and while this bill has been on a fast track, there has been time to make some changes and reach agreement on a bill that is less objectionable than the bill that the Administration originally proposed.

In fact Ashcroft had pushed for a quick resolution to get this bill passed in his testimony on September 24-25, 2001. Ashcroft argued that nothing short of an expedient bill would be necessary to guard against criminal activity on the Internet, but, said new surveillance measures were crucial in building a new type of security structure which could no longer be justifiably ignored. Ashcroft told the Committee new laws were a must to ensure the safety of America because of the present “deficiencies in our current laws on terrorism reflect two facts.” He said that:

First, our laws fail to make defeating terrorism a national priority. Indeed, we have tougher laws against organized crime and drug trafficking than terrorism. Second, technology has dramatically outpaced our statutes. Law enforcement tools created decades ago were crafted for rotary telephone -- not email, the Internet, mobile communications and voice mail. Every day that passes without dated statutes and the old rules of engagement -- each day that so passes is a day that terrorists have a competitive advantage. Until Congress makes these changes, we are fighting an unnecessarily uphill battle. (268)

The sad irony of the whole bill, is that there is still no guarantee that terrorist threats will be substantially reduced, although this bill was passed to mitigate recent intelligence failures. The secrecy elements involved as investigative tools should not be lost on American citizens who believes that debate is one of the most important aspects of democracy, which, after all, is the design of the legislative branch when it comes to Executive proposals. As the ACLU has pointed out, these bills lacked an “official conference committee meeting of Senators and Representatives to reconcile differences between the two bills.” No debate, no deliberation, along with a blind compromise to ensure re-election campaigns and to retain their political life with a vulnerable American people still high-charged following the terrorist attacks. The Bush administration got its way in a highly secretive fashion when it came to the changes made in these two bills. As the ACLU has pointed out, “a small group of members and administrative officials met behind closed doors to negotiate the package.” This veiled secrecy has not only cheated the American people but violates the foundations of democratic principles, America was based upon. (269)

The major theme of this bill is not consistent with the Constitution as unprecedented authority has been given to the DOJ, which does not mandate judicial or congressional oversight. Unless the Bush administration is able to demonstrate that taking away many guaranteed liberties under the Constitution will ensure a more secure America, then the government should not be given the tools or new powers to be able to utilize these new laws in the Patriot Act. (270) The Bush administration moved real fast after the attacks to sell Americans the notion that security prevailed over all else, including privacy rights and civil liberties. It was at this time that the shift became rigorous with less resistance to intrusion by law enforcement officials or intelligence surveillance measures that came from the emotional response to the 9/11 attacks. Legislation now effects individuals in the United States more so than it effects the rights of the government. The government gains more power, while the people receive less power. At this time, the government is able to trace phone, internet, e-mail, while enjoying the ability to access credit card billing information on banking records, roving wiretaps, which are linked to people instead of telephones, along with new strict measures to follow financial records and transactions. (271)

The language found in the Patriot Act is the prose most desired by the Bush administration which was not analyzed in a proficient manner because of the absent debate and deliberation in the House of Representatives as this bill was adopted and passed in near abject secrecy away from the public at-large. (272) Now, the Patriot Act has finally given law enforcement officials the tools it has wanted for a long time for the purpose of increased surveillance, i.e. spying or snooping, on the American people. The Patriot Act has now increased the search power against law-abiding citizens without much oversight capabilities by government officials. Unlawful searches are very eerie to those who believe in the Constitution as these measures are not limited to anyone or place. The Patriot Act is now a widely debated topic as the crux of its controversy surrounds its true constitutionality of Sections: 213; 214; 215; 216; and 218, which has provisions that only need to meet a low standard of proof or cause to allow easy sneak and peek searches. (273) One of the most absurd comments made by Bush was that it was a well thought out piece of legislation. This was simply not the case. It was bipartisan, but this joint agreement was a rush job in a tide of high emotionalism exuded by the Bush administration as well as trying to reassure the American people that this matter was under control. (274) Although the bill increased the ability for law enforcement to gather data and information on suspects, there is no way to predict how effective these new snooping powers will be in catching potential terrorists. In fact, it could do nothing to improve the situation as this act “represents the most radical change in police powers in decades, and codifies counterterrorist measures previously rejected by Congress as too intrusive.” (275) It is highly doubtful that unless challenged by the American people in a higher court than what is Congress that these anti-terrorism laws will be repealed any time in the near future because no member in Congress would want to be viewed as voting for a repeal which would then be upstaged by another attack on America’s interests or inside the Homeland once again. This would, in effect, be political suicide for them to act against anti-terrorist legislation. (276) Bush had made absurd comments claiming this bill was passed through with a great deliberative process: “led by the members of Congress on this stage, and those seated in the audience, it was crafted with skill and care, determination and a spirit of bipartisanship for which the entire nation is grateful. This bill met with an overwhelming -- overwhelming agreement in Congress, because it upholds and respects the civil liberties guaranteed by our Constitution.” (277)

Law Professor Susan Herman so eloquently argued, that the Patriot Act has given the Executive branch the breadth of power to do what it wants, free of any checks on their power. Her characterization of the ill conceived bill is left with very harsh criticism stating that this “new legislation continues to force feed power to the executive branch, while limiting the judiciary, and keeping Congress in the dark.” (278) They have neatly circumvented the Constitution in her view. Like many right thinking Americans, this scholar has questions about the role of the government in this war on terrorism not only in other lands but also in the domestic realm as well. Herman is concerned with civil liberties and the increased surveillance powers afforded to the Judicial branch under the Executive branch with the full blessing of the Congress. She has reservations on both war fronts and the real intent of the government to exercise power it did not act responsibly with during the Viet Nam War era. The changes made to American law is the most disturbing part of this entire bill to Herman. As she puts it, “most of its provisions amend previous law by adding or deleting words, paragraphs, or sections, forcing people reading the legislation to embark on an elaborate treasure hunt, tracking each amendment back to try to determine its impact on the previous law.” ⁽²⁷⁹⁾

President George W. Bush signed the Patriot Act into law on October 26, 2001. From the East Room of the White House, President Bush proudly signed this bill into law but not before giving a speech that was filled with many absurdities. This bill’s passage came on the heels of the anthrax attacks at the postal service as well as some congressional offices. Bush said the battle against terrorists had to continue because America had the moral fortitude that the terrorists lacked. Bush was appalled at the unilateral action that the terrorists took against America since there was no provoked attack by America. With the threats of terror looming large in the public mind, Bush assured a nation undergoing a psychological state of mass hysteria that the Patriot Act was one of the remedies to fight terrorism and all its evil forces. (280) With this bill, the Executive branch has more power than it ever had which increases the ability to prosecute void of statue of limitations protocol. The Bush administration has justified mitigating the rights of non-citizens by decreasing their rights to due process under the United States Constitution. The subjugation against political activists now faced with harsh penalties if they speak out too loudly against President Bush is not democratic. (281) This bill gives federal law enforcement and foreign intelligence agencies greater authority to gather data and intercept communications in an effort to combat domestic and international terrorism, by the compilation of data in the new war on terror declared by both Bush and Ashcroft. The bill creates “new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists.” (282) Bush said that:

The changes, effective today, will help counter a threat like no other our nation has ever faced. We've seen the enemy, and the murder of thousands of innocent, unsuspecting people. They recognize no barrier of morality. They have no conscience. The terrorists cannot be reasoned with. Witness the recent anthrax attacks through our Postal Service.” (283)

Bush claimed that this bill was done through dedicated work of those members in Congress. This following passage was great political rhetoric but hardly the truth. The bill was passed hastily with much collusion by members in Congress, thereby making the words of Bush seem rather hollow. (284) The passage of the Patriot Act made the words of Thomas Jefferson seem all the more poignant. The founders knew that despotism and like things would occur if there were not the proper checks in place of governmental power or authority. The Patriot Act served the power of the government to widen its executive powers but lessened legislative power which is directly linked to the interests of the people and their freedoms. In a letter to letter to E. Carrington on May 27, 1788, Jefferson said that government power would have adverse affects if too strong. He said that in the scope of politics and government, that “the natural progress of things is for liberty to yield and government to gain ground.” Well, arguing right here, the expedient nature of the bill’s passage, showed that President Bush was less than honest asserting that great care was taken by the Congress. Bush, on October 26, 2001, (285) said:

“Today, we take an essential step in defeating terrorism, while protecting the constitutional rights of all Americans. With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger. I commend the House and Senate for the hard work they put into this legislation. Members of Congress and their staffs spent long nights and weekends to get this important bill to my desk. I appreciate their efforts, and bipartisanship, in passing this new law.” (286)

One of the biggest exaggerations made by Bush were comments made about Attorney General Ashcroft who was actually questioned very little before the Judiciary Committee that met in either the House or Senate. Bush’s comments about the Attorney General were ludicrous but an apathetic public would not know the difference. Bush said that he could only praise “Attorney General John Ashcroft for spending a lot of time on the Hill to make the case for a balanced piece of legislation,” (287) was absurd to say the least. Orrin Hatch, in the mold of Bush-Ashcroft wanted to make the entire Patriot Act permanent without any sunset clauses but it was this very clause added that would by December of 2005 end some of the sections in this which gave the late Senator of Minnesota Paul Wellstone, the impetus to vote for the bill. (288) The knock on the Democratic leadership in the Congress is that they have not been real conscious of those “diminishing constitutional rights” as Republicans like Bob Barr and Dick Armey have led the charge against civil rights abuses within the Patriot Act more so than liberal Democrats. Armey said the Ashcroft Justice Department was “out of control....the most dangerous agency of government.” Bob Barr said that “People need to learn," "that we're all subject to having our privacy invaded. . . . These laws will dramatically change the way we go about conducting our society.” (289)

Bush believes this bill will give law enforcement officials as well as foreign intelligence officials the necessary tools needed to fight the war on terrorism. He says it allows domestic law enforcement officials “better tools to put an end to financial counterfeiting, smuggling and money-laundering” while it allows foreign intelligence officers in the CIA the ability to work with the domestic intelligence, the FBI in both “intelligence operations and criminal operations the chance to operate not on separate tracks, but to share vital information so necessary to disrupt a terrorist attack before it occurs.” (290) Bush had made the first call on unilateral action. There is no doubt in his mind or his party’s that new laws are the only answer. The Democrats have historically been chastised for big bureaucracies, high taxes, and piled on legislation. Well, it did not take long before Bush was doing what the Democrats had been previously accused of by the GOP ad infinitum, under the banner of providing law enforcement with the much needed tools it had been lacking. (291) Bush said that:

“These terrorists must be pursued, they must be defeated, and they must be brought to justice. And that is the purpose of this legislation. Since the 11th of September, the men and women of our intelligence and law enforcement agencies have been relentless in their response to new and sudden challenges. We have seen the horrors terrorists can inflict. We may never know what horrors our country was spared by the diligent and determined work of our police forces, the FBI, ATF agents, federal marshals, Custom officers, Secret Service, intelligence professionals and local law enforcement officials....” (292)

It is highly unlikely that terrorists will be deterred by this new legislation to plot new attacks if it fits into their plans to get out their political message. Bush tied this new bill into what would follow the plan of pre-emption. The unilateral strategy of the Bush White House and the plans for pre-emption were uttered on this day with the full approval of both the House and Senate, with many Democrats in full agreement. Had the Democrats been more deliberate and not so impulsive to vote with the President in fear of their political careers and had the media done their job as honest critic and questioner, then, perhaps, the Bush administration would not have been able to play the role of executioner. Bush said that this bill was the law of all remedies and had support at an emotional time from all with seemingly no opposition. Bush also talked about the increased ability for terrorists to use all the new tools that technology offers for damage purposes which needs to be counter-attacked. With these new advances in technology there is no room to wait before these attacks become common place a worried President Bush had said to an emotional wrought public. (293) On this historic day of abrogating the Constitution, President Bush cautioned the American public of this new danger that could no longer lay dormant for them to attack once again. (294) Bush said this bill would help to counter these

“terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike.” (295)

The Patriot Act would now change the conduct of law enforcement in both the domestic and foreign policy realms. This now has serious implications for private citizens who will never do any terrorist act neither engaged in any criminal act. This bill had greater implications for those in the world of high technology and people who made their livelihood in the computer industry. Bush spoke to the government’s new role in changing old laws to counter terrorism with an increased ability for information-sharing, surveillance of communications on the Internet, as well as all the communications technological challenges posed by terrorist activity. (296) Bush said that:

As of today, we're changing the laws governing information-sharing. And as importantly, we're changing the culture of our various agencies that fight terrorism. Countering and investigating terrorist activity is the number one priority for both law enforcement and intelligence agencies....Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones....As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. Investigations are often slowed by limit on the reach of federal search warrants. Law enforcement agencies have to get a new warrant for each new district they investigate, even when they're after the same suspect. Under this new law, warrants are valid across all districts and across all states....” And, finally, the new legislation greatly enhances the penalties that will fall on terrorists or anyone who helps them. Current statutes deal more severely with drug-traffickers than with terrorists. That changes today....The statute of limitations on terrorist acts will be lengthened, as will prison sentences for terrorists. This bill was carefully drafted and considered....” ” (297)

The tools have been given to the Intelligence agencies to monitor Internet use whether in chat rooms, open political forums as the surveillance targets now alter “full and open debate on issues.” (298) There may be well intentioned Americans who use the argument that if there is “nothing to hide,” citizens should not be afraid to sacrifice civil liberties for more security, which safety is more important, for these harsh new measures are for the betterment of national security, even if it adversely affects the liberties guaranteed under the United States Constitution. This argument, although laudable on its face, is incredulous in real terms. The passage of these harsh measures allows the government to track people without their knowledge that they are being monitored or tracked on the Internet. This is another example of the right-wing interfering in the private lives of American citizens, while making their argument of less government superficial. (299) Therefore, this argument of the right wing can be considered to be a very weak one as they are constantly jamming down Evangelical morality down everyone’s throats in a most paternalistic manner on social issues such as school prayer, welfare reform, abortion rights, rights for homosexuals, at the same the party mantra of the Republican Party claims not to be one of bigotry, racism or sexism. Generally speaking, the radical right which Bush and Ashcroft represent bigots, racists, and sexists. Their policies, attitudes, written language, and statements not only reflect this, but their defense of it at every turn puts an exclamation point on this unfortunate reality. Their contempt for a pluralistic and multicultural American society is reflected in the Bush policy which is a unilateral doctrine which lacks open debate among all people in America. It is this method of governing that allows unilateral action in a most centralized manner as Bush leads an autocratic form of government free of long standing democratic laws which speaks to the paranoid style of politics which has elements of ideological self-righteousness and class-based supremacy. Even more so, the Bush administration has gone after people who speak out and show some political dissent. As there has been a declared war on terrorism, there has also been a war declared on civil liberties, political dissent and activism, by this same Bush administration who wants to export democracy to Iraq and other nations in the Middle East it does not approve. One of the prime examples that the Patriot Act police are exercising what Ashcroft has deemed as the forces to protect America’s national security was when a man named Barry Reingold was investigated by the FBI over perceived anti-Bush and anti-US policy statements, when he said: “Bush has nothing to be proud of. He is a servant of the big oil companies and his only interest in the Middle East is oil.” The United States government, due to the impotence of Congress to adhere to their authentic government role in serving as a check on Presidential power, has allowed along with the DOJ to squelch the free speech rights of Americans. Ashcroft has effectively used political rhetoric in making arguments regarding the Patriot Act to undermine and obfuscate civil liberties and civil rights in America. Somewhere, Osama bin Laden is having the last laugh in the fact that his attacks on America has forced this unprecedented change. It is not the successes of the Bush administration which sparked great confidence in the President. What led to the American people’s comfort level with Bush was his failures leading to the attacks on 9-11-2001. How many people, now or at the time were aware of the spy plane incident with China? The quest of President Bush to renege on the ABM Treaty with Russia and Vladimir Putin was seen as another arrogant action of the United States to obstruct yet another international agreement because the autocratic President deemed that it was no longer necessary. The roots of the Bush administration’s hatred for the rule of law wherever it exists was in action long before they had negative views of the United Nations in the aftermath of France, China, and Russia threatening veto in the UN Security Council of UNSC Resolution 1441, regarding the war with Iraq. This should be of no surprise that the right wing considers anything against their view points to be irrelevant. This new vision of unilateral action affects Americans not only with defense policy but, also, with domestic policy. This new state of affairs and the police state aspect of the Bush administration would not be complete without the Department of Homeland Security led by Bush crony former Pennsylvania Governor Tom Ridge, another Republican. Thus, one could make the plausible argument that the creation of this new department was an effort by the Bush administration to mitigate their own failures which occurred on 9-11 or simply political opportunism aimed at their core constituents who favor police and military actions. Despite the conservative mantra of less government or big government bureaucracy, the creation of this department to oversee twenty-two federal agencies, in addition, to one-hundred and eighty thousand employees is not smaller government. (300) Under this department it would be easier for state and local police to acquire sensitive information that federal agents have access. The Department of Homeland Security have vast databases of American citizens (301)

The Patriot Act with its enormous reach of surveillance guarantees is a threat to civil liberties despite Bush’s claims that “today, we take an essential step in defeating terrorism while protecting the constitutional rights of all Americans,” or that such a thing could be guaranteed. Law enforcement officials now have wide latitude to act anyway they determine fit which could be in the way of search and seizures, detention of potential suspects and deportation without hearings, ability to eavesdrop on Internet communications, as well as being able to monitor financial transactions, education records, medical records, and to acquire any needed electronic records. Ashcroft and the FBI will now be able to receive sensitive personal information whether in banks, ISPs or with credit bureaus. In another example of the Bush administration’s walk on the Constitution and the right to know clause as well as the right to privacy, Ashcroft and company will make sure that under this law “those businesses will not be allowed to tell clients that they have turned over medical, financial or other personal records to investigators.” The simple word of being a trespasser can get one to be fully monitored by the FBI on the Internet, void of the word terrorism that the pretense of this bill was argued in front of the Judiciary Committees in both the House and the Senate. The FBI now can investigate those who make late payments to the ISP or if they have been in violation of TOS or what is better known as terms of service. There can be no guarantees of being protected since Bush said it himself that “this government will enforce this law with all the urgency of a nation at war.” (302)

Invading computers that Americans use without probable cause is not consistent with the United States Constitution. Invading computers anywhere does not mean terrorist attacks will not occur again, either. If Bush and Ashcroft love the freedoms America has enjoyed by the presence of the Constitution, then they should adhere to the amendment that says “no person shall be deprived of life, liberty, or property without due process of law.” The increased surveillance laws in the Patriot Act aimed at law abiding American citizens is an act of low-grade tyranny that only the impotent or the lethargic who are apathetic in their interest of what freedom in America means would blindly agree. One of the major criticisms of the Patriot Act is it gives a vague definition of the word “terrorism.” The other criticism of the bill is that many of its provisions because of great ambiguity in language will leave the door open for abuses, intended or otherwise. Although it is clear in many sections of what can be looked at, in regards to the “intent” of an investigation there is still no check that can guarantee that innocent e-mails are not lifted by sinister law enforcement agents, nonetheless. (303) Feingold was strongly opposed to the broadened powers of the Executive Branch and that Ashcroft now could use these measures in the way he desired. He claimed that the specific proposals made by Ashcroft which were not constitutional in his estimation which would have allowed administrative orders to subpoena records overstepping search warrant or wiretapping law provisions as it related to public records. He said that the audacious mature of the Attorney General in “the original bill contained sweeping permission” so Ashcroft would be able to access “copies of educational records without a court order,” however, “the final bill requires a court order and a certification by the Attorney General that he has reason to believe that the records contain information that is relevant to an investigation of terrorism.” (304)

Enter the private sector with American Online who said that the laws of the United States would prevail in any investigation as long as these laws were consistent with existing statutes. It appears as if AOL will be adhering to the Patriot Act’s provisions without a legal challenge. AOL said that it would “release specific information about your account only to comply with valid legal process such as a search warrant, subpoena or court order, or in special cases such as a physical threat to you or others.” It is only when there is evidence that one is a terrorist suspect that the government would in secret mind you, require with no questions asked and no way to rebut the order in a court of law for both phone companies and Internet providers to make available without warning all past and present customer data on record. These types of requests do not expire under the Sunset laws of the Patriot Act. (305)

The United States has not only a very well organized intelligence system that spans every continent but it also has other means in its defense arsenal which makes the Patriot Act unnecessary. There is what is called an “Echelon” system which is used by the CIA, FBI, and the National Security Agency. This system is quite scary as the information it can pick up can keep tabs on people by way of “monitors, by satellite, communications.” (306) This is the right-wing America that has been creeping upon all who cherish civil rights since the birth of the Civil Rights Movement. Now this paper will turn to the various sections which directly affects user of the Internet and legal issues that do harm Netcitizens. The first item to be looked at is the Modification of Title III.

Coleen Rowley’s letter to FBI Director Robert Mueller exposed weaknesses, vulnerabilities, and the incompetence in the intelligence agency. The Patriot Act is not only aimed at “terrorists,” but at criminals at-large. This was a bill that the law enforcement community wanted for a long time but seized the opportunity to achieve their objective after 9-11. These new laws are not as practical to fight cyber terrorism or “non-violent domestic computer crime.” There is no proof that the attacks were carried out because the government lacked the necessary tools to track the hijackers before 9-11.(307) If anyone doubts this assertion, of law enforcement officials to conduct investigations, one only needs the example of Coleen Rowley to understand when procedures are not properly administered. Questions of the government are not only needed still, but under the present circumstances, probing the Bush administration is more necessary than ever before. One individual who took the Bush administration and the FBI to task for not being as forthcoming to the American people was FBI Agent Coleen Rowley. Her testimony and what was revealed is a sad chapter in how incompetent the government can be as well as their refusal to ever be introspective. The Rowley case is fine indicator of why questions are always necessary and to think otherwise sets a dangerous precedent that will not protect American democracy, but will be the fire and brimstone to make this land of the free into one of tyranny and coercion.

Rowley’s biggest regret was that FBI superiors in Washington, D.C. were lax in not pursuing what has been known to be the case of the possibly twentieth hijacker, Zacarias Moussaoui who was a French-Moroccan who had signed up at a local flight school wanting to learn how to fly a 747. (308) In May of 2002, Rowley unleashed her 13 page secret memo to FBI Director Robert Mueller, which the FBI moved quickly to declare this classified information. (309) Coleen Rowley said that there were warnings ignored in her 13-page memo regarding Moussaoui to the office in Washington, D.C., which could have led to thwarting the hijackings on 9-11. Subsequently, Rowley testified before the Senate Judiciary Committee about this memo which questioned the investigation methods of the FBI. (310)

Rowley accused Mueller of not being honest about the Minnesota’s office investigation of Moussaoui. Also, in this scathing letter to Mueller and congressional staff, Rowley said top bureau officials stymied a wider investigation into suspected terrorist Zacarias Moussaoui, accusing FBI officials of trying to “circle the wagons” after the attacks on New York and Washington. Moussaoui was later charged as a conspirator in those attacks, after first being detained in Minnesota on immigration charges. (311) Rowley wrote that the FBI was not forthcoming after the attacks, saying that the FBI’s Mueller led to distortions of the truth by shading information whether that language had been “omitted, downplayed, glossed over and or/mischaracterized.” Rowley accused Mueller of not being honest about the Minnesota’s office investigation of Moussaoui by using the old technique of plausible denial. Rowley was angry with the FBI’s senior level officials, saying, “I have deep concerns....that a delicate shading/skewing of facts by you and others at the highest levels of FBI management has occurred and is occurring.” (312)

Rowley wanted to obtain a search warrant to look at Moussaoui’s home computer including belongings his when he was arrested. Whether accurate or not the Bush administration has repeatedly claimed that “Moussaoui had intended to be the 20th hijacker on Sept. 11.” Moussaoui is the Bush administration’s symbol that they are winning the war on terror after the fact that an attack against America was terribly successful. (313) Rowley’s memo to Mueller paved the way for the Democrats long awaited inquiry into the 9-11 attacks. The Bush White House which has been justifying operating in secrecy was not enthusiastic with any questions about their foreknowledge of the 9-11 attacks. Bush defended the veil of secrecy. Bush said “I'm the commander -- see, I don't need to explain -- I do not need to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something. But I don't feel like I owe anybody an explanation.” (314) Can the FBI be trusted in the age of the war on terror and the passage of the Patriot Act to tell the truth and not obfuscate facts or impinge on civil liberties of American citizens? The flap in the saga of incompetence within the FBI and the lack of integrity being questioned came as the result of FBI Director Robert Mueller’s statements following the attacks on America. Mueller’s claims of not knowing about threats prior to 9-11 was disputed by Rowley. Mueller said “the fact that there were a number of individuals that happened to have received training at flight schools here is news, quite obviously....There were no warning signs that I'm aware of that would indicate this type of operation in the country.” (315)

Coleen Rowley found out truth telling is a lonely endeavor when speaking oit against FBI procedures. She received signed letters of former agents who sent her a phrase telling her to resign because they saw her as being disloyal. (316) The letter she received branding her a traitor saying that, “if you work for a man, in heaven's name work for him; speak well of him and stand by the institution he represents. Remember—an ounce of loyalty is worth a pound of cleverness ... If you must growl, condemn, and eternally find fault, why—resign your position and when you are on the outside, damn to your heart's content.” (317)

Rowley’s statement to the Senate Judiciary Committee regarding oversight issues, that pertained to counter-terrorism on June 6, 2002, stressed “some of the problems endemic to the FBI Bureaucracy and to the federal law enforcement/national security process as a whole.” She saw the fact that there is an “(Ever) growing bureaucracy” as a problem listing “at least three negative aspects to the FBI’s ever growing bureaucracy.” She also said that “a distinction can and should be drawn between those mistakes made when trying to do the right thing and those mistakes caused due to selfish motives.” (318) Identifying both “careerism” and “risk aversion” as a major problem in the FBI she talked about idleness. She said that when there are “Big cases“ there are “big problems” whereas in “little cases“ one finds only “little problems“ while with “no cases“ simply “no problems.” Rowley likes the proactive approach which will not reward idleness saying “the idea that inaction is somehow the key to success manifests itself repeatedly because up to now the consequences of inaction have not been that apparent while the opposite has been true for instances when FBI leaders did take some action....”Rowley said that it was a real problem at times trying to get the most simple requests through. (319) Rowley said the “cumbersomeness of getting approval(s) for even the smallest decisions is obvious. Past Directors have tried to eliminate some of the Headquarters layers, but each time, their meager efforts have, in no time at all, been totally erased.” (320) There needs to be an avoidance of future roadblocks as far as Rowley is concerned. She said that in “rare cases” that the FBI “implement a mechanism” known more in the “medical field” second opinion. Rowley said that:

Just as a person diagnosed with a serious medical problem often obtains a second opinion before embarking on a course of treatment, FBI investigators ought to be able to pursue a second opinion from a cadre of federal attorneys with greater expertise in terrorism matters than the average assistant United States attorney when the potential consequences are serious and substantial disagreement exists between the investigators and the lawyers. (321)

Rowley stated in her testimony, which Mueller agreed, that the FBI computer systems were not up to date. The FBI needed new computers but did not have them. There was an outdated and antiquated computer system network within the FBI as Muller said and funding was needed to offset this major transgression. In the height of the information age, the FBI has computers which do not function the way one would think to conduct a high level investigation as many computer systems were unable with its outdated software to use the basic search engines on the Internet. Mueller said the FBI would propose to increase their counter-terrorism department by hiring more people in the fields of computer technology and Arabic, while placing agents who had handled criminal investigations to now work in this intra-agency. (322)

Rowley had harsh criticism for the needless paperwork of the FBI, referring to the “reports” inside the agency which do not hold much importance amounting to time killers than crime chasers. (323) Rowley said, “it’s one thing to work around the clock on a breaking kidnapping, armored car robbery, terrorist incident, etc., but it’s quite another to have to spend hours engaged in completing the myriad of required “reports” the FBI bureaucracy has spawned in order (at least in part), to justify its existence!” (324) Future roadblocks with investigations needs to be avoided, according to Rowley. She said “the events of September 11th themselves have greatly dislodged the idea of inaction having no consequences, ” which is why a new course of “prevention is now more important than prosecution,” within the FBI. Rowley realized after 9-11 that the threats are not phony, and a new mind set is essential. Although the objective of the FBI has been prevention, Rowley says the ways of fighting violent crimes has “predated the recent terrorist events.” (325)

Rowley wanted to obtain a search warrant on Moussaoui, so the Minneapolis FBI field office could wiretap and search his computer after it was known he was seeking to take flight lessons. Her criticism is over the disabled information sharing system with other agencies and superiors in Washington, D.C. not to mention, difficulties obtaining search warrants. (326) Rowley made it clear that stagnation over a long time period of no attacks could not lull people back into thinking this war on terror was over. Rowley said that:

“Continual reminders are, however, in order especially if the country is able to go for a time without another terrorist event and begins to lapse back into complacency; and the FBI and federal attorneys offices lapse back into a career risk-adverse culture. Finally it should be noted that there may still be some who have not yet made the transition.” (327)

Rowley said that there was no reason why field office agent agents could not go to a Washington D.C. “to personally present their affidavits to the FISA Court” and “in conjunction with a Bureau supervisor.” This would only be in cases of discrepancy so things like the case in Minneapolis did not happen again. However under no reasons or circumstances should “neither the Court nor attorneys in the Department of Justice” move to “elevate a particular desired style over the substance of an affidavit.” (328)

She called on the Congress and others to look to the 1984 Supreme Court decision in New York v Quarles 467 U.S. 649, in which case there was an exception to the Miranda ruling when it was determined that security was more important than how one is questioned under the law. Thus, Miranda was set aside in this case because public safety was ruled more important how the suspect was questioned. Rowley said that she attempted to call attention to this case before the Patriot Act was made law but that she did not receive any communication about this case. Rowley does not know why this ruling has been ignored by the courts in the United States when potential cases of great danger are being investigated. Rowley said that in order to protect public safety that it might be important to “violate the Miranda rule in good faith, in order to protect public safety” or “enact legislation amending 18 U.S.C. 3501 on the admissibility of confessions by at least providing a defense from civil liability for federal agents.” (329) Rowley said that integrity of the office has to be maintained at all costs to avoid any semblance of a corrupt system. Rowley said people in the field are the most important as no “computer will ever match the value of human personnel.” Rowley said trust and integrity need to be maintained with the Patriot Act, (330) saying that:

The Government, in fighting the current war on terrorism, has already asked for and received further investigative powers. Although it can be argued that many of the new powers are simply measures to apply prior law to new computer technology or (as with some of the modifications to the Attorney General Guidelines) are things that any private citizen can do, some members of the public remain apprehensive that the FBI will go too far and will end up violating the rights of innocent citizens. It may be necessary to ask for certain other revisions of policy or even law. The only way the public’s distrust can be alleviated, to enable us to do our job, is for the FBI, from the highest levels on down, to adhere to the highest standards of integrity. (331)

In short, Rowley wanted authority to conduct FISA surveillance after finding out that Mossaoui wanted to attend flight school but only how to fly a jet, not landing or how to take off from the ground which sent up red flags in her mind. But she was unable to obtain the necessary warrants to search his computer because of the red tape in the FBI. Searching in-depth was a problem despite the fact that he was linked to Islamic extremists in Afghanistan-Pakistan, and had made frequent trips there. The White Paper authors argue that strict guidelines used by the FBI led to the lackluster investigation because Rowley was unable to obtain an expedient search warrant, which is why they favor easing these restrictions on search warrants in emergency like cases as this one illustrated. (332)

Search warrant requirements do not need to be followed where there is special government need like what occurred on September 11, 2001. Searches as well as warrants have been authorized before without the necessity of a probable cause present and has been upheld by the court as Rowley explained in her testimony and her letter to Mueller. This is usually granted “when special needs, beyond the normal need for law enforcement” make these elements unworkable. The Constitutional standard for all searches or surveillance is “reasonableness.”” (333) Therefore, long as reasonableness is present in a given situation then the law will uphold emergency investigations as a vital necessity in the protection of national security concerns this type of surveillance standard would meet this “constitutional standard” which was the case in the aftermath of 9-11. According to the F. S., the FISA order has always been outside the Fourth Amendment’s language. The Federalist Society argues that under national security emergencies or exigencies that the President: “has the inherent authority to conduct warrantless surveillance for national security purposes, including for foreign intelligence surveillance. Thus, the procedures set forth in FISA that enable federal law enforcement to conduct electronic surveillance are not mandated by Constitutional concerns. Congress may alter them as appropriate.” (334)

This standard was held in agreement by two lawyers of connected to the Federalist Society regarding the new language of FISA. (335) The Federalist Society argues that because the President has already been given “extraordinary authority in national security matters,” that there are not any reasons that “constitutional concerns” are warranted, especially since FISA surveillance is based on strict certification and minimization requirements. On October 3, 2001 before the Senate Judiciary’s Subcommittee on the Constitution, Federalism and Property Rights, Cardozo School of Law Professor John O. McGinnis argued on behalf of the Executive Branch, the President, and the Attorney General as to has the rights to maintain the national security of the United States, in which case FISA can be overruled in certain circumstances. (336) He did maintain the notion that a specific purpose was of necessity in this regard. In part, he said the new provisions for Executive power was that:

This change is constitutional. First, . . . it is not at all clear that FISA procedures are required at all when the President or the Attorney General certifies that such collection is reasonable given national security considerations. If one of the bona fide purposes of the collection of information is to promote national security, the collection is by definition reasonable in the national security context. Even more fundamentally, so long as collection has a bona fide national security purpose (and FISA judges are available to make sure that it does) its law enforcement benefits do not undermine its national security justification. To claim otherwise would be to suggest that action which is justified to protect our national security somehow becomes illegitimate if it has other non-illicit, and possibly beneficial, consequences. (337)

Therefore, under the guise of national security protection in an emergency-like situation, the F.S. argues that the Executive has the authority to eliminate statutory obstacles in protecting Americans. Catholic University Law School Dean and Federalist Society member Douglas Kmiec carried the right-wing’s legal philosophy before the Senate Judiciary’s Subcommittee on the Constitution, Federalism and Property Rights, all of which are great concerns with this policy think tank. Kmiec true to the consistency of Federalist Society extremism within the law without any concern for the rights of the innocent. He stated that:

“Gathering intelligence without meeting the stringent probable cause and notice elements of a traditional Title III criminal investigation are essential to tracking down terrorist activity. The real distinction should not be between intelligence and criminal purposes, but whether the surveillance or search is being effectively directed at terrorist activity, especially that from a foreign source, without having to decide whether at any given time one purpose or the other predominates. . . .” (338)

"The greatest [calamity] which could befall [us would be] submission to a government of unlimited powers."
-- Thomas Jefferson, Declaration and Protest of Virginia, 1825.

The Bush administration has put those who criticize the polices of the government on notice. President Bush made the statement regarding Section 802 and of due process with the Patriot Act that “we're making it easier to seize the assets of groups and individuals involved in terrorism. The government will have wider latitude in deporting known terrorists and their supporters....This legislation is essential not only to pursuing and punishing terrorists, but also preventing more atrocities in the hands of the evil ones.” (339) It is Section 802 of the Patriot Act speaks to the undemocratic law of those who choose to criticize American policy. This provision allows the creation of a federal crime which is deemed “domestic terrorism.” which speaks to political oppression. In this section it specifically says that in section that “ (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; `(B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.’” In very “broad wording,” as Nancy Chang points out, this is an extension to “acts dangerous to human life that are a violation of the criminal laws, if they appear to be intended...to influence the policy of a government by intimidation or coercion...occur primarily within the territorial jurisdiction of the United States.” (340) This could also throw into question one’s rights to demonstrate or organize efforts such as activism as Jody Williams did when she used the Internet to mobilize the campaign to fight the use of landmines.

As Nancy Chang and other critics of Section 802 have pointed out, the language is quite “vague” which could lead to an interpretation by law enforcement agencies to make surveillance a regular occurrence on political organizations, individual activities based on associations alone, and criticisms of American policy. The real harsh penalty which could result with this act is that political dissent, otherwise constitutional and legal, would be now considered to be a criminal or terrorist offense by prosecutors under the jurisdiction of Attorney General Ashcroft. So, when Attorney General Ashcroft uses the language found in the Patriot Act that which uses words to intimidate those who might want to engage in political protests, like, “appear to be intended...to influence the policy of a government by intimidation or coercion,” the implication of Ashcroft is these people are a threat and danger to society. The right-wing in my estimation is preparing to turn the clock back to a time long gone by, as civil rights gains made in the 1960s, are now threatened to be illegal in the eyes of Bush and Ashcroft. In this draconian set of laws, it appears that even Martin Luther King, Jr. would be thought of as a terrorist by this administration. (341)

Despite the first amendment guarantees under the United States Constitution, those wanting to exercise their rights whether they are anti-globalization activists or environmentalists can now be seen as “domestic terrorists” by the Bush administration, despite their objectives of direct action which defined the civil rights era in America. For people in other nations, who are seen as supporting groups like HAMAS or Hizbollah, their admission into the United States would be persona non grata. The entrance into the United States would stop any non-citizen who was viewed as someone that has used a “position of prominence within any country to endorse or espouse terrorist activity,” if the Secretary of State makes this determination to the Attorney General, which says that their speech “undermines United States efforts to reduce or eliminate terrorist activities.” (342) The definition of the word “terrorism” makes anyone who dares to criticize government policy a potential terrorist suspect which abrogates both the first and the fourth amendments to the United States Constitution. Citizens have a right to speak out on government policy under freedom of speech. The government, if they think someone is violating the law ought to prove their case under the probable cause standard of the United States Constitution. Both of these amendments have been violated with the passage of the Patriot Act. Section 802 of the Patriot Act which could make authors, educators, protestors and activists targets of the government’s crackdown on dissent. (343)

Ashcroft stayed true to his veiled threats as some people found out. In Houston, Texas, a woman named Donna Huanaca was targeted as well as investigated by the FBI after she displayed an art gallery on past covert actions done by the CIA which was viewed as “anti-American activity.” Her love of art and the truth about past CIA actions of covert activity has now made her a national security threat, even if she is an imagined threat. (344) Also, according to the ACLU, A. J. Brown, another woman was targeted by the FBI, accused of having “unAmerican material”, in her apartment of President Bush. Bush after all, was a death penalty proponent as Governor of Texas. As a matter of fact there were rapid deaths in Texas with the death penalty under Bush. How illogical that Brown was visited by the FBI in her home for showing President Bush holding a noose in relation to the death penalty in Texas. Geez, what a terrorist she is. Perhaps, the FBI checked her apartment to make sure she was not holding concealed plastic knives in her cabinets, while they were at it, or hiding copies of the Constitution in her bedroom. (345)

As Aden and Whitehead point out, the Supreme Court has allowed for national debate of any kind to continue in their rulings saying that discussion of public policy issues should remain “uninhibited, robust, and wide-opened,” regardless of whether the “content” of language or speech are “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Therefore, the Supreme Court reaffirmed the exchange of ideas in a civilized debate or forum. Furthermore, Aden and Whitehead, point out that the Supreme Court has upheld this decision so distortions do not occur. They said that “those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth.” (346) This clearly shows that the Supreme Court protects the freedoms of Americans rather than the military. The military protects the interests of the national government in foreign lands, with war being an extension of foreign policy. The Supreme Court has also reaffirmed their position on all first amendment rights as both Aden and Whitehead say that the “freedom of speech and of the press guaranteed by the Constitution embraces at the least liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” (347)

If Bush and Ashcroft continue to make laws which adversely affects the freedoms of Americans then it will be the terrorists who have forced the government of the United States to alter these cherished rights and liberties guaranteed under the Constitution, in which case, “the enemy will have won,” while at the same time not necessarily guaranteeing security in the long-run. (348) Nobody will ever know if they are being watched because the government will not be notifying citizens that they are monitoring one’s activity. When one is utilizing the computer or the Internet, there will be a lock on the main servers along with the acquisition of information and records from AOL, which the FBI will now be able to possess. That nickname you thought was secret, is no more a secret. The authorities will now have access to all private records from the use of the Internet including user names and the like. Section 210 of the Patriot Act is another area where the Constitution is being abridged as it allows Ashcroft the ability to use an “administrative subponea” to raid businesses or homes or other areas where the DOJ sees fit; at any hour or time without probable cause being necessary. There does not have to be a crime involved for an investigation to be established, but, merely the potential onset of one. Autocrat Ashcroft has taken it upon himself “to obtain telephone or Internet/email service provider records of customer names, addresses, including time and duration, length of service and source of payment, including credit card or bank account numbers.” (349) Feingold also opposed the provisions of lessening the probable cause standard. He said that personal privacy has now been seriously altered, saying that this new bill has give authority to the police to:

monitor the e-mails of an employee who has used her computer at work to shop for Christmas gifts. Or someone who uses a computer at a library or at school and happens to go to a gambling or pornography site in violation of the Internet use policies of the library or the university might also be subjected to government surveillance – without probable cause and without any time limit. With this one provision, fourth amendment protections are potentially eliminated for a broad spectrum of electronic communications. (350)

So, yes, Ashcroft has, in fact, the authority under this undemocratic Patriot Act to make surveillance a regular occurrence on the Internet whether its chat rooms, message boards, without proof or regard that a crime is actually being committed. There is a lack of need to determine with a judge’s order that would establish the probable cause standard which previously had been necessary. The apathy of American citizens essentially allowed for the granting of these powers to the Bush administration should be troublesome to anyone who understands that it has been the legal system of America, and laws reaffirmed by the U.S. Supreme Court which defends freedom. The U.S. military might protect America’s economic interests, but, its the legal system through the courts at every level which upholds the freedom of Americans. It is the same Executive branch, which was given the authority to wage war in Iraq, free of Congress declaring war, which has abrogated the powers in the Constitution, which were more than once upheld by the Supreme Court on all amendments. The Bush administration has undercut the past decisions made by the Supreme Court from immigration rights laws to free speech, religion, assembly, association, and privacy rights, which speaks to a disregard for democratic principles and laws, than an entity which champions these freedoms. In Insatiable Appetite, it says, “The USA Patriot Act allows agents to seize business records, search a home, or yet information about (a person’s web surfing activity) with (minimal judicial review). It is allows the FBI to monitor telephone or e-mail communications without demonstrations probable cause.” (351) There are unprecedented new police powers which effectively makes the United States a police state, unofficially, if, not officially. I agree with the position taken by the ACLU, that the measures in the Patriot Act will not ensure a safer America. (352) In addition, this is another statement worth monitoring in the affirmative:

“Before obtaining new powers government officials should be required to demonstrate that (1) the new power is necessary to thwart future attacks; and (2) the benefit of the new power outweighs its adverse effect on liberty.” (353)

The Patriot act will not be answer to all the problems that are abundant in an open democracy where people move fast and free and where privacy rights, at least right now, are still somewhat respected. The Patriot Act will not curb cyberterrorism, if there was ever a threat to be concerned with in the first place. One should not forget that often in times of national crisis and emotional or vulnerable states, negative laws can be made. This is what happened with the Patriot Act. In response to September 11, and the subsequent laws which followed, see if these remarks makes sense, if not prescient. The goal of terrorists are to leave emotional damage on its target by making a clear political statement. Al Qaeda would prefer to use a great event like the attacks on September 11, 2001 which is immediately “cumulative.” rather than to use an approach of terror that is “gradual” as Al-Qaeda wants their strikes to be noticed, which in the course of many cyber attacks are not known by the victims of these like attacks. Al Qaeda is much more likely to use explosives as the desired weapon than they are to use a cyber attack. These explosives have more of a direct impact to inflict physical and emotional damage than a cyber attack, which is what al-Qaeda would want more so. (354)

There are many analysts in the computer security systems arena, who think the whole notion of cyberterrorism has a faulty premise. Those who agreed with this assessment that terrorists are not as culpable in cyberattacks comes from a consensus agreement from experts in the fields of cyber-terrorism and computer security, along with past and present government and military officials. It is the hackers and others who do criminal acts which are responsible for the threats to cybersecurity. Its the spread of computer viruses and worms, which serve as the major threats on the internet and with all computer systems, which may be ripe for attack. The most vulnerable state of affairs in the computer world is in private industry. President Bush who prefers to stay out of the private sector’s business dealings is not likely to push for new measures on corporations in the name of cyber security. In this case, Bush has chosen to focus the administration’s attention on the government. It appears that the government is out-performing private industry regarding cybersecurity as it pertains to “sensitive military systems.” (355) How do you know the truth does not always prevail? In the cyberterrorism debate and the hard sell on the Patriot Act, the American people were duped into believing the Bush administration’s mass hysteria on these imagined threats which would be difficult to carry out because of measures put in place by the US government a long time ago. It is known by weapons experts that nuclear weapons and are secure with the best available type of Internet security which is an “air-gapped,” measure, which there is no connection directly to the Internet in a physical sense. As a result there is no real way that hackers would be able to get through. There are also necessary codes which are not only carried but would have to be used by the president as well as the mechanisms which does not allow these weapons from being jeopardized. Both the Defense Department and the National Security Agency have taken serious measures regarding cyber threats. The Pentagon has sought to ensure that systems are not exposed at all but maintaining its protection through an isolation process on both the Internet and the internal network inside the Pentagon. The National Security Agency tests all new computer software before it can be used. (356) Thus, the threats to America in cyberspace and doing any significant damage is not wholly credible. Air Force Chief Information Officer John Gilligans said that “terrorists could not gain control of our spacecraft, nuclear weapons, or any other type of high-consequence asset.” (357)