Commentary

Bill of Rights: Mark it Uncollectible?

Though heralded by Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, and a New York Times editorial, for restoring the badly diminished reputation of the Justice Department, the confirmation testimony of new Attorney General Eric Holder fell far behind Mr. Leahy’s own persistent record of safeguarding the Constitution, very much including the Bill of Rights. And, chillingly, Mr. Holder also seemed to echo some of President Obama’s views.

During our new chief law enforcer’s testimony at his confirmation hearing, Mr. Holder was asked about the new expanded “Guidelines for Domestic FBI Operations,” rushed into place in December by then-Attorney General Michael Mukasey and still current FBI Director Robert Mueller. These guidelines for probing links to terrorism suspects echo those I reported on during the ceaseless surveillance time of J. Edgar Hoover.

The FBI in 2009 can open an investigation (a “threat assessment”) on anyone without a judicial warrant and without any evidence not even in the rule of law, “an articulable suspicion of criminal activity.” As Caroline Fredrickson, director of the American Civil Liberties Union’s Washington legislative office, says: “Since, under these guidelines, a generalized ‘threat’ is enough to begin an investigation, the FBI will be given carte blanche to begin surveillance.” These guidelines also allow the FBI to consider race and ethnicity in their “threat assessments.”

Asked by Russ Feingold, Wisconsin Democrat, about this purging of our individual Fourth Amendment liberties in both national security and criminal investigations, Mr. Holder said: “The guidelines are necessary because the FBI is changing its mission … from a pure investigative agency to one that deals with national security.”

Mr. Holder did add in Joe Palazzolo’s Legal Times report that he would “see how these guidelines work in operation.” He didn’t mention that they are warrantless and unbounded.

Will he find out for us, as they are covertly in operation, which of us actually innocent Americans have been tracked in these “threat assessments” and secured in various intelligence agencies’ databases? In another exchange during Mr. Holder’s confirmation hearing, Sen. Orrin Hatch, Utah Republican, reminded Mr. Holder of his speech last year castigating President George W. Bush: “I never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA [National Security Agency] surveillance of American citizens.” Currently, there is some purported judicial supervision of the NSA and other intelligence agencies in last year’s amended Foreign Intelligence Surveillance Act, enthusiastically signed by President George W. Bush, as well as supported by then-Sen. Barack Obama (who had at first said he would filibuster the bill).

But, as I’ve previously reported, this law in real time in real life permits the omnivorous NSA to check on the phones and Internet use of suspected American “threats” without telling a judge whom it is targeting and why, as it adds these names to its bottomless files.

Sen. Jon Kyl, Arizona Republican, asked Mr. Holder about the range and depth of surveillance allowed under FISA present legislation: “Do you believe the new law is constitutional, and if confirmed, will you support its enforcement?” “I believe,” Mr. Holder answered “that the law is constitutional. … It’s a very essential tool for us in fighting terrorism. I think that what was unfortunate is that we could have had that tool congressionally sanctioned at a much … is a very useful tool and one that we will make great use of.”

While President Bush, before having this masked congressional authority to engage in warrantless wiretapping on us, was discarding the Fourth Amendment, our major telecommunications companies were lawlessly his helpers. They have been immunized from prosecution from those past acts under the 2008 FISA legislation. Although President Obama and Mr. Holder both assure us that “no one is above the law,” they make an exception of the telecommunications lawbreakers, and Mr. Bush.

Mr. Holder also appears to favor immunizing other violators of not only our laws but also international treaties, according to an exclusive Jan. 28 article in The Washington Times by Eli Lake, whose reliable reporting I learned from when he was with the late New York Sun. In an interview with Mr. Lake, Sen. Christopher “Kit” Bond, Missouri Republican, said he would support Mr. Holder for attorney general after “Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the [enhanced] interrogations program.” A Holder aide disputed the story, but the next day, Eli Lake and Ben Conery reported in The Washington Times in a “little-noticed written response to questions from Republican Sens. Jon Kyl of Arizona and John Cornyn of Texas. Mr. Holder wrote: ‘But where it is clear that a government agent has acted in “reasonable and good faith reliance on Justice Department legal opinions” authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.’ “

Since certain CIA interrogators broke our own War Crimes Act and Article 3 of the Geneva Conventions in their interrogations, our new attorney general is invoking the Nuremberg Defense, of innocence for following orders. Is he also speaking for President Obama?

On Jan. 29, an Associated Press article in Newsday reported Mr. Leahy saying “he would vote against a nominee who made such a promise not to prosecute [such] U.S. agents without even examining the circumstances.” But he voted for Mr. Holder.

Next week: President Obama and Mr. Holder startlingly adopt George W. Bush’s “state secrets” policy in a crucial case of torture and CIA renditions.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the libertarian Cato Institute, where he is a senior fellow.