Press Isn't Covering Threats To Constitution

By: Nat Hentoff Counseling the press on how to provide more depth and context to the increasingly complex news, Loren Ghiglione, dean of Northwestern University's Medill School of Journalism, wrote in the Oct. 31 issue of Melville, N.Y.-based Newsday, "Journalism schools should train specialists with expertise in the sciences, the military, business, and international relations to ... become the reporters of the 21st-century world."

He omitted the need for knowledge about the law, particularly constitutional law, although reporting on the Bill of Rights and the rest of the Constitution is a fundamental part of our job.

Hours after President Bush signed the far-reaching anti-terrorism bill -- overwhelmingly passed by Congress, with only Russell Feingold, D-Wis., dissenting in the Senate -- White House Press Secretary Ari Fleischer held his regular press conference. There were no probing questions about the new 140-page law. The same was true on the Sunday morning TV talk shows thereafter. For most newspapers, this extensive expansion of government surveillance powers has not been sufficiently detailed in stories about the law. How many Americans know about the secret searches of homes and offices authorized in the USA Patriot Act?

To begin, because of the significantly loosened standards for electronic surveillance -- of home computers, e-mail, and all kinds of telephones -- there is now very limited judicial oversight of the FBI and other law-enforcement agencies.

Moreover, previously secret grand-jury testimony can now be shared by various intelligence agencies. The grand jury, as has been said, is the prosecutor's playground. Also, under the new law, the CIA, now allowed to share in loosely defined intelligence data, is again enabled to spy on Americans here at home -- without a court order -- despite the CIA's previous abuse of the Constitution in its domestic adventures.

Particularly ominous is the return of what were called in J. Edgar Hoover's time "black bag jobs" -- secret searches by the FBI, done without warrants. Burglars with badges.

Now, even with search warrants, as the American Civil Liberties Union (ACLU) pointed out, this provision "would allow law-enforcement agencies to delay giving notice when they conduct a search. ... The government could enter a house, apartment, or office when the occupant is away, search through her property and take photographs, and, in some cases, seize physical property and electronic communications, and not tell her until later." Newsrooms are not automatically excluded.

These break-ins will not be limited only to terrorism investigations but can apply to any criminal investigation. Moreover, while there is a "sunset" clause in the Patriot Act -- requiring Congress to review the law in four years to see if it's gone too far -- the "black bag jobs" are not subject to the sunset clause. They are now part of permanent law. (The euphemism for their implementation is "Sneak and Peek Warrants.")

Without timely notice of what is taken in a covert raid, a warrant can't be challenged in court until the government decides to give notice. Until then, it's impossible to find out if agents took more than the warrant permitted -- or, for that matter, if they had the right address for the break-in. U.S. Justice Department guidelines for these secret searches state that notice should be given within 90 days. But the government can ask a judge to extend that period again and again for "good cause." With terrorism continuing, what judge would deny a continuous delay?

In view of the pervasive surveillance of phones, e-mail, and computers under the new law -- in addition to the secret searches -- Laura Murphy, the ACLU's legislative director, emphasized: "It's very difficult to challenge the gathering of information about you when, in some cases, you're not even going to know it has been gathered -- and shared with so many agencies."

U.S. Supreme Court Justice Louis Brandeis was prophetic in his dissent in the first wiretapping case, Olmstead v. United States (1928): "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 will be enabled to expose to a jury the most intimate occurrences of the home."

But now the FBI can break into the secret drawers, and other law-enforcement agencies can explore from afar a wide array of electronic messages, including the most personal information about one's home or office, without the target knowing about it.

Surely we have the right to know about this historic expansion of the government's power to keep an unblinking eye on us. But if our primary sources of information -- the media -- don't know the essential details of what is happening to the Bill of Rights, Americans have to take the word of the president, the Congress, and the attorney general that, as John Ashcroft has assured us: "We're going to protect and honor the Constitution. We'll not be driven to abandon our freedoms by those who would seek to destroy them."

Are you reassured?