Several examples help to illustrate this point, including flag-desecration laws, hate-speech laws in the United Kingdom and Canada, U.S. college and university speech codes, the Cairo Declaration on Human Rights in Islam, and the Megan Meier Cyberbullying Prevention Act, currently before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Although seemingly unrelated, these measures rely on a common assumption, namely that governments should provide emotional well-being to their citizens, even at the expense of free expression. This assumption discounts the emotional well-being of other citizens, neglects countervailing social considerations, and hands arbitrary power to governments.

The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard-pressed to banish what he termed utility monsters—that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover—or create—utility monsters. We must not allow this to happen.

Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.

Furthermore, the Fifth Amendment states: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This "hate crimes" statute gives federal prosecutors the authority to try a defendant a second time for an alleged hate crime after prosecution in a state court.

Feingold, Dick Durbin, D-Ill., and new Democrat Arlen Specter (Pa.) had the constitutional courage to oppose the Judiciary Committee bill eventually going to the floor that with few exceptions, leaves the Patriot Act intact. I'll be reporting on the crucial fight to bring the Bill of Rights back into the Patriot Act as Senate and House versions merge into a law to be signed by Obama as he continues the Bush-Cheney legacy.

It was Feingold who, in October 2001, was the only member of the Senate to vote against the original Patriot Act as, on the floor, he accurately predicted our greatly weakened privacy, due process and other rights since then.

He is not giving up. "In the end," Feingold says. "Democrats have to decide if they are going to stand up for the rights of the American people" or (for recent example) "allow the FBI to write our laws."

As I have reported, the FBI is already writing our laws — without going to any judge. How much have you seen about the FBI's locking up of the Fourth Amendment on cable and broadcast television (from the right- or the left-leaning stations) in newspapers, on the Internet or, of course, from the Democratic Congressional leadership, Harry Reid and Nancy Pelosi, characteristically indifferent to the Bush-Cheney-Obama assaults on the Bill of Rights?

As James Madison warned, "A people who mean to be their own governors must arm themselves with the power knowledge gives."

When were the first FBI guidelines on domestic surveillance and why? In the 1970s, Sen. Frank Church of Idaho, chairman of a Senate Committee on Intelligence Activities, exposed FBI Director J. Edgar Hoover's COINTELPRO (Counter-intelligence Program) as an omnivorous surveillance operation that aimed squarely at preventing Americans "exercise of First Amendment rights of speech and association."

If Big Brother is always watching you, you become careful of what you say and with whom you associate.

The Church committee's revelations resulted in the then-attorney general, Edward Levi (a former professor of constitutional law), and Congressman Don Edwards formulating the first FBI guidelines specifically faithful to the Constitution.

When I was reporting on Edwards' congressional service (1962 to 1995), I often described him as the "The Congressman from the Constitution." As chairman of the House Subcommittee on Civil and Constitutional Rights, Edwards, a former FBI agent, set standards for congressional oversight of the FBI.

Under Presidents George W. Bush and Barack Obama, these standards have become obsolete.

I commend to every member of Congress and their constituents what Edwards said in 1975 about the Church committee's newly disclosed unbounded, warrantless standards of FBI surveillance of Americans who might "threaten" national security. And compare the Don Edwards' definition of fundamental American civil liberties with those of present Attorney General Eric Holder and FBI Director Robert Mueller — and their astonishingly permissive standards of FBI accountability.

"No federal agency," said Congressman Edwards, "the CIA, the IRS, or the FBI, can be at the same time policeman, prosecutor, judge and jury. That is what constitutionally guaranteed due process is all about. It may sometimes be disorderly and unsatisfactory to some, but it is the essence of freedom."

The Constitution, Edwards continued, does not permit "federal interference" with Americans' speech or associations, and other such citizen constitutional rights, "except through the criminal justice system, armed with its ancient safeguards." Like mandated judicial supervision — absent from current Obama administration FBI surveillance guidelines.

Edwards regarded as "subversive" the "notion that any public official — the president or a policeman — possesses a kind of inherent power to set aside the Constitution whenever he thinks the public interest, or 'national security' warrants it."

Don Edwards represented the Constitution we are losing.

On Aug. 10, 2002, in Washington, Don Edwards received the American Bar Association's Thurgood Marshall Award for his "unswerving devotion to the Constitution and its values throughout his career."

How many present members of Congress do you believe qualify for that award? Any of the Senate or House members representing you? Unhesitatingly, I nominate Sen. Russ Feingold of Wisconsin.

It was in 2002 that I asked Don Edwards what he thought of the then Bush-Cheney definition of the Bill of Rights. "Locking people up," he began, "citizens or noncitizens, without being charged and without access to a lawyer is wrong." But our Nobel Prize-winning President Obama is seriously considering "permanent detention" of terrorism suspects who cannot be tried in court because of the tortures they have undergone under American custody. This same president does not object to the current warrantless FBI surveillance of Americans without evidence, for reasons of "national security." Would you give Obama a Liberty Medal?

Let's clear some brush first. Many pundits keep invoking the national security equivalent of Lisa Simpson's tiger-repellent rock: Some doubt the rock's magic powers, but I sure don't see any tigers around! If we actually pay attention to the institutional sources of pre-9/11 intelligence failure, we find that an array of internal structural problems and simple blunders, not some paucity of investigative tools, deserve the lion's share of the blame. Inadequate information sharing and coordination, which could have been substantially remedied even without legislative change, were indeed part of the problem — but I'm mystified by how often some come back to this aspect of the law, which is largely irrelevant to the actual reform proposals on the table. Meanwhile, the successful investigations since 9/11 — only a few of which actually involved "plots" for attacks in the U.S. — appear to have depended a lot more on good human intelligence and informants in the community than broad new surveillance powers.

If we were really engaged in a "fundamental debate" over whether to "squash" Patriot Act authority wholesale, then perhaps an analysis at the magic-rock level would be adequate. But there are many more specific questions: How narrowly should the target description in a roving wiretap application be drawn to avoid issuing broad "John Doe" warrants? What kind of evidentiary showing is appropriate when investigators use national security letters — issued by the tens of thousands each year — to gather financial records or track Internet activity? Does the creation of vast databases of personal information about mostly innocent Americans for the purposes of "pattern analysis" yield an intelligence benefit that justifies the risk to privacy involved? What procedures might avoid the already-evident problem of "mission creep," where extraordinary tools for counter-terrorism efforts end up primarily being used for ordinary criminal cases? What rules should govern the handling of information about innocents?

For the most part, supporters of the Patriot Act have chosen to gloss over these important questions. Take for example one particular reform, though it's not among those still under consideration: Sen. Russell D. Feingold's proposed requirement that national security letters be used to identify terror suspects only when they are the "least intrusive means" to do so. Many worry that this is too "subjective" a standard, and that hapless investigators uncertain about how to apply it will be too cautious. But this is not how it works. The attorney general develops specific guidelines that give content to the more abstract requirements of the statute. Agents are not required to make complex legal determinations on their own, and there is no reason in principle to expect this to be a more serious problem than fleshing out the meaning of "probable cause," or any number of other standards that apply to government search and seizure.

And this brings us to the real bone of contention. The ultimate investigative "flexibility" is a total lack of standards that the Founding Fathers despised. We don't allow this, not only because it is inconsistent with American values but because before we imposed some restraints on intelligence surveillance in the 1970s, we know that domestic spying authority was systematically abused, on a massive scale, for political purposes unrelated to national security. The response of Congress was to impose the very restraints whose dilution you now applaud. The risk that history will repeat itself is transparently real, even if you don't deem the new abuses that have managed to slip through the veil of secrecy sufficiently "dramatic" yet.

What we need is an analysis of the trade-offs. We are so used to talking about the balance of "liberty versus security" that it's easy to forget they're not always in conflict. Some restraints on government power leave us much more free without seriously impeding legitimate investigations.

Part I | Part II | Part III

First, intelligence surveillance demands especially robust safeguards precisely because it's so inherently secretive and therefore lacks many of the checks that exist in criminal investigations. Ordinary wiretaps, for instance, are always eventually disclosed to their targets and typically meant to be used as evidence in a trial, in which defense attorneys have powerful incentives to scrutinize the record closely for misbehavior. Intelligence taps are covert: Targets may never learn they've been spied on, and criminal prosecution may not be the goal. Both National Security Letters (NSLs) and so-called Section 215 orders for business records and other "tangible things" come with gag orders that remain in place long after the investigation is complete. The banks and telecommunications providers served with these orders have little incentive to expend time, money and energy challenging demands for information in court, and the few that have done so are prohibited from talking about why they believe the requests are illegitimate. Congressional oversight can help — the Church Committee in the 1970s uncovered a stunning array of abuses stretching back decades — but, absent some major scandal, tends to be limited in scope.

It also doesn't help that among the already documented abuses is the intelligence community's failure to fully and accurately inform Congress about their use of those powers. When legislators do become aware of problems, their ability to mobilize support for reform is hampered by their own inability to go public with their concerns. Sen. Russ Feingold (D-Wis.) has repeatedly said that he believes those Section 215 orders are being misused, but citizens have no real way to evaluate the claim.

Second, "abuse" typically connotes a violation of the law, or at least the internal rules governing surveillance. But there's good reason to be concerned about some of these powers even when they're used precisely as intended. In recent hearings, Justice Department officials made quite clear that they vacuum up reams of telephone, Internet and bank records in the preliminary phases of investigations to "close down leads" and spot suspicious patterns. This is another way of saying that the vast majority of people surveilled are innocent — not when this authority is misused, but by design. The FBI issues tens of thousands of National Security Letters each year, and the majority seek information about U.S. citizens. That information isn't discarded; it goes into a massive FBI database containing literally billions of records. Simple math suggests there just aren't that many terrorists out there.

So-called sneak-and-peek warrants that were sold as a vital tool for terrorism investigations are now overwhelmingly used in ordinary criminal investigations — contrary to what the public was told, certainly, but in accordance with the letter of the law. If we look back to those abuses uncovered by the Church Committee, we find some cases in which surveillance of journalists, activists and even Supreme Court justices was initiated for manifestly unlawful political purposes. But just as often, information gathered in the course of an initially legitimate national security investigation was later used for an illegitimate political end.

Finally, it's important to be clear on just what sort of abuse we should be worried about. It is not primarily that investigators will decide to start spying on average Americans — though we have learned that some National Security Agency operators find it hilarious to pass around recordings of U.S. soldiers' pillow talk. It's that all this information, even if acquired for legitimate purposes, gives the people who hold it enormous political power. A reporter, activist or senator who crossed J. Edgar Hoover might find his career ruined by an embarrassing leak to the press.

All that said, what do we know about actual abuses so far? We know two successive inspector general reports found endemic misuse of NSLs, including requests for information the FBI wasn't entitled to obtain and "exigent letters" sent when no real emergency existed. We know that in at least one case, NSLs were used to obtain records after a judge rejected an attempt to obtain them via court order, citing 1st Amendment concerns. We know expanded National Security Agency wiretap powers approved last year have led to substantial "overcollection" of Americans' purely domestic communications — including Bill Clinton's e-mails. Many of these can be put down to sloppiness or ineptitude, though they're no less troubling.

But history teaches that if there are more deliberate abuses, we probably won't know about them for decades to come. I don't know about you, but I'd rather not wait to find out.

This is the second part in a three-part series.

Part I | Part II | Part III

Feingold, Dick Durbin, D-Ill., and new Democrat Arlen Specter (Pa.) had the constitutional courage to oppose the Judiciary Committee bill eventually going to the floor that with few exceptions, leaves the Patriot Act intact. I'll be reporting on the crucial fight to bring the Bill of Rights back into the Patriot Act as Senate and House versions merge into a law to be signed by Obama as he continues the Bush-Cheney legacy.

It was Feingold who, in October 2001, was the only member of the Senate to vote against the original Patriot Act as, on the floor, he accurately predicted our greatly weakened privacy, due process and other rights since then.

He is not giving up. "In the end," Feingold says. "Democrats have to decide if they are going to stand up for the rights of the American people" or (for recent example) "allow the FBI to write our laws."

As I have reported, the FBI is already writing our laws -- without going to any judge. How much have you seen about the FBI's locking up of the Fourth Amendment on cable and broadcast television (from the right- or the left-leaning stations) in newspapers, on the Internet or, of course, from the Democratic Congressional leadership, Harry Reid and Nancy Pelosi, characteristically indifferent to the Bush-Cheney-Obama assaults on the Bill of Rights?

As James Madison warned, "A people who mean to be their own governors must arm themselves with the power knowledge gives."

When were the first FBI guidelines on domestic surveillance and why? In the 1970s, Sen. Frank Church of Idaho, chairman of a Senate Committee on Intelligence Activities, exposed FBI Director J. Edgar Hoover's COINTELPRO (Counter-intelligence Program) as an omnivorous surveillance operation that aimed squarely at preventing Americans "exercise of First Amendment rights of speech and association."

If Big Brother is always watching you, you become careful of what you say and with whom you associate.

The Church committee's revelations resulted in the then-attorney general, Edward Levi (a former professor of constitutional law), and Congressman Don Edwards formulating the first FBI guidelines specifically faithful to the Constitution.

When I was reporting on Edwards' congressional service (1962 to 1995), I often described him as the "The Congressman from the Constitution." As chairman of the House Subcommittee on Civil and Constitutional Rights, Edwards, a former FBI agent, set standards for congressional oversight of the FBI.

Under Presidents George W. Bush and Barack Obama, these standards have become obsolete.

I commend to every member of Congress and their constituents what Edwards said in 1975 about the Church committee's newly disclosed unbounded, warrantless standards of FBI surveillance of Americans who might "threaten" national security. And compare the Don Edwards' definition of fundamental American civil liberties with those of present Attorney General Eric Holder and FBI Director Robert Mueller -- and their astonishingly permissive standards of FBI accountability.

"No federal agency," said Congressman Edwards, "the CIA, the IRS, or the FBI, can be at the same time policeman, prosecutor, judge and jury. That is what constitutionally guaranteed due process is all about. It may sometimes be disorderly and unsatisfactory to some, but it is the essence of freedom."

The Constitution, Edwards continued, does not permit "federal interference" with Americans' speech or associations, and other such citizen constitutional rights, "except through the criminal justice system, armed with its ancient safeguards." Like mandated judicial supervision -- absent from current Obama administration FBI surveillance guidelines.

Edwards regarded as "subversive" the "notion that any public official -- the president or a policeman -- possesses a kind of inherent power to set aside the Constitution whenever he thinks the public interest, or 'national security' warrants it."

Don Edwards represented the Constitution we are losing.

On Aug. 10, 2002, in Washington, Don Edwards received the American Bar Association's Thurgood Marshall Award for his "unswerving devotion to the Constitution and its values throughout his career."

How many present members of Congress do you believe qualify for that award? Any of the Senate or House members representing you? Unhesitatingly, I nominate Sen. Russ Feingold of Wisconsin.

It was in 2002 that I asked Don Edwards what he thought of the then Bush-Cheney definition of the Bill of Rights. "Locking people up," he began, "citizens or noncitizens, without being charged and without access to a lawyer is wrong." But our Nobel Prize-winning President Obama is seriously considering "permanent detention" of terrorism suspects who cannot be tried in court because of the tortures they have undergone under American custody. This same president does not object to the current warrantless FBI surveillance of Americans without evidence, for reasons of "national security." Would you give Obama a Liberty Medal?

The Patriot Act is not really a "tool"; it's a toolbox. And the debate currently unfolding in Congress is not over whether to take the box away; it's about whether and how particular tools can be improved to safeguard civil liberties without unduly burdening terror investigations.

One specific tool mentioned is roving wiretap authority. We know these taps were indeed used in the recent investigation of alleged bomb plotter Najibullah Zazi. Fortunately, there is more or less unanimous agreement that investigators should continue to be able to use this authority. But there are a slew of important differences between the roving taps long available in criminal cases and those authorized under the framework of the Foreign Intelligence Surveillance Act — differences I laid out in some detail in a post at the Cato Institute's website last week. Roving FISA warrants, for instance, may merely describe a target, rather than identifying one, as would be required in the criminal context. Given that FISA collection is already substantially broader than criminal taps, some have argued that the requirements should be tightened to preclude "John Doe" warrants that identify neither the target nor a specific communications facility. Since news reports indicate that Zazi was named as a potential Al Qaeda operative by a tip from Pakistani intelligence, there is no reason to think this kind of common-sense protection would have impeded his capture.

Equally common-sense checks have been proposed for other Patriot Act powers. All seek to protect the privacy of innocent Americans by strengthening oversight of these broad surveillance tools, and to foreclose indiscriminate dragnet collection of data by requiring some minimal rational grounds for believing that the information sought is linked to terror. What I'd like to hear, but never seem to, is some explanation of how such protections will put us at greater risk.

Instead, I mostly hear about the extent of the risk — which is real enough that it doesn't need embellishment. One of those 26 disrupted "plots" specifically discussed involved the so-called Lackawanna Six. Though they had indeed trained in Afghanistan before 9/11, it is not remotely clear that they had any "plot" to "foil," and there is precious little evidence that they had any intention of carrying out attacks on U.S. soil, let alone that they were preparing to launch "another 9/11." Investigators pounced when one suspect made ominous reference to a "big meal" at an upcoming "wedding." This appears to have been code for ... a big meal at his wedding.

Nor is it obvious that new legislation was needed to allow sharing of information about the case between investigators. As the Office of Legal Counsel's own internal memorandums make clear, the regulations imposed in the 1990s establishing a "wall" between criminal and intelligence investigations went "beyond what is legally required." The problem, of course, is how to best permit information sharing without letting FISA be used as a pretext to evade the more stringent standards for criminal wiretaps. The Patriot Act struck one balance, which may or may not be the best one — but this seems an odd point to focus on, since it's not among the Patriot Act changes targeted by any reform legislation I've seen.

Civil libertarians have some specific concerns about how particular Patriot Act powers are too broad or open to misuse, and propose specific changes that would address these concerns. It is no response to assert that the Patriot Act has been useful; what you need to explain is how any particular safeguard would have so diluted investigative powers that it would have frustrated an investigation and created a security harm outweighing the benefit to civil liberties. If you'd rather trade scary stories, that's fine too — just let me know so I can buy a bag of marshmallows before our next round.

This is the first part in a three-part series.

Part I | Part II | Part III]]> Wed, 21 Oct 2009 00:00:00 EDT http://www.cato.org/pub_display.php?pub_id=10692 http://www.cato.org/pub_display.php?pub_id=10640 We know the rules by now, the strange conventions and stilted Kabuki scripts that govern our cartoon facsimile of a national security debate. The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place. Conservatives hit the panic button on the right-wing noise machine anyway, keeping the delicate ecosystem in balance by creating the false impression that something has changed. We've watched the formula play out with Guantánamo Bay, torture prosecutions and the invocation of "state secrets." We appear to be on the verge of doing the same with national security surveillance.

Last week, the Senate Judiciary Committee seemed to abandon hope of bringing any real change to the Patriot Act. A lopsided and depressingly bipartisan majority approved legislation that would reauthorize a series of expanded surveillance powers set to expire at the end of the year. Several senators had proposed that reauthorization be wedded to safeguards designed to protect the privacy of innocent Americans from indiscriminate data dragnets — but behind-the-scenes maneuvering by the Obama administration ensured that even the most modest of these were stripped from the final bill now being sent to the full Senate.

In September the Senate got off to a promising start. Only three provisions are actually slated for "sunset" this year: "lone wolf" authority to wiretap terror suspects unconnected with any foreign terror group; "roving" wiretaps that can follow a suspect across an indefinite number of phone lines and Internet accounts; and "Section 215" orders that can be used to compel third parties to turn over any "tangible thing" investigators believe may be relevant to a terrorism investigation. Yet several Democrats had signaled a desire to use the renewal process to undertake a much broader review of the post-9/11 surveillance architecture, including National Security Letters (NSLs) — a controversial tool that permits the mass acquisition of financial and telecommunications records without court order — and last year's sweeping amendments to the Foreign Intelligence Surveillance Act (FISA), which permit the executive branch to authorize broad interception of Americans' international communications with minimal court oversight. Democratic Senator Russ Feingold proposed an ambitious and comprehensive reform bill called the JUSTICE Act — which still would have reauthorized roving wiretaps and 215 orders — while Democratic Senator Patrick Leahy offered a more modest bill that nevertheless sought to narrow the nearly unlimited scope of NSLs and Section 215.

The renewal of the expiring provisions was always a fait accompli, though Fox News and some conservative columnists falsely claimed that Democrats were scheming to eliminate them entirely. Feingold had recommended permitting the as-yet-unused "lone wolf" provision to lapse, but at hearings on renewal last month Democratic Senator Sheldon Whitehouse didn't believe there was "any doubt" about the reapproval of all three. Rather, Whitehouse explained, the question was whether any "further refinements" might be needed to check potential abuses.

In public, the administration declared its openness to such "modifications." As well one might expect, considering that President Obama himself had co- sponsored legislation in 2005 containing many of the very same safeguards now in Feingold's bill. Even when, during the campaign, Obama had disappointed many of his supporters by voting for the very FISA Amendments Act he pledged to filibuster, he reassured them that as president he would revisit that "imperfect" bill. Civil libertarians understood that the more limited Leahy bill would provide the template for reform but had reason to hope some of the key provisions of Feingold's JUSTICE Act might be incorporated during markup.

It was not to be. When the Senate Judiciary Committee convened at the beginning of the month to start work on legislation, it became clear that the Obama administration had been waging a campaign behind the scenes to oppose any significant modifications to NSL or 215 authority — in particular, any requirement that investigators have "specific and articulable facts" tying records sought to terror suspects or their associates. In a last-minute switcheroo, Democratic Senator Dianne Feinstein swooped in with a substitute bill that gutted the core reforms of Leahy's modest bill. And it got worse. A week later, a series of further amendments offered by Republican Jeff Sessions watered down the final bill reported out of committee still further. Remarkably, the arch-conservative Sessions appears to have been taking dictation from the Obama administration, presumably to spare committee Democrats the indignity of further overt capitulation: the New York Times reported that his changes were "a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday." An attempt by Feingold to amend the FISA Amendments Act — perhaps the most egregious of the post-9/11 expansions of executive branch surveillance authority — was promptly torpedoed by Leahy on procedural grounds.

The supposed rationale for rejecting these changes — many of which the very same Judiciary Committee had unanimously favored just four years earlier — was that any new limitations on broad search powers might interfere with an "ongoing investigation." During hearings, one Justice Department official had alluded to an "important, sensitive collection program" involving 215 orders, and Attorney General Eric Holder publicly implied — though he did not state outright — that the new powers had played a crucial role in the capture of alleged bomb plotter Najibullah Zazi.

But there is ample reason for doubt. According to a report on National Public Radio, intelligence officers became aware of Zazi thanks to a tip from Pakistani intelligence indicating that he had trained with Al Qaeda. Such a tip should have provided grounds for a full-blown FISA wiretap warrant, and would have far surpassed the mere "reasonable basis" to suspect a terror link that even the most aggressive reform proposals required for NSLs or 215 orders. Democratic Senator Dick Durbin complained that "the real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy," and worried that posterity would look unkindly on his colleagues once that cloak was lifted. Feingold, too, disputed that his reforms would hamper investigations, and hinted that classified briefings had revealed uses of Section 215 that he considered abuses of the power.

While it's impossible to know precisely which tools were pivotal in the Zazi investigation, or what difference the proposed reforms would have made, the intelligence community has recently shown it has few qualms about making strained claims of necessity to support expansion of its powers.

That power to spy on "lone wolf" terror suspects under the looser standards of FISA was originally justified by the claim that FBI agents were unable to search "twentieth hijacker" Zacarias Moussaoui's laptop before 9/11 for want of such power. Yet in 2003 a bipartisan Senate report concluded that this was untrue: in reality, FBI supervisors had "failed miserably" by misunderstanding the fully sufficient powers they already enjoyed under FISA. The law as written in September 2001 would have permitted them to obtain a warrant; and in fact, investigators later used precisely the same evidence they'd already gathered to obtain an ordinary criminal warrant on Moussaoui.

Or consider the 2005 investigation of Magdy Mahmoud Mostafa el-Nashar, a former acquaintance of the London transit bombers (later cleared of wrongdoing). An FBI agent had gone to obtain records from North Carolina State University, where el-Nashar had done a stint as a graduate student. With the records in hand, however, the agent got a call from FBI headquarters instructing him to return them and instead obtain the same documents using a National Security Letter. As anyone even remotely acquainted with NSLs would have known, however, they cannot be used for educational records — and indeed, agents had to improvise a form to make their request. The perplexed university properly denied the request, and another subpoena was obtained.

Though any such misuse of an NSL is supposed to be reported to an oversight board promptly, no such report was filed for more than a year. Yet within a week of the incident, it had somehow come to the attention of FBI Director Robert Mueller, who cited the "delay" as evidence that the Bureau's current NSL powers were inadequate.

The FISA Amendments Act is the successor to an even broader bill called the Protect America Act, which similarly gave the attorney general and director of national intelligence extraordinary power to authorize sweeping interception of Americans' international communications. It was hastily passed in 2007 amid claims that the secret FISA Court had issued a ruling that prevented investigators from intercepting wholly foreign communications that traveled across US wires. Former Director of National Intelligence Michael McConnell even claimed that FISA's restrictions had rendered it impossible to immediately eavesdrop on Iraqi insurgents who had captured several American soldiers. The New York Post quoted tearful parents of the captured men expressing their horror at the situation and a senior Congressional staffer who alleged that "the intelligence community was forced to abandon our soldiers because of the law."

Yet as a Justice Department official later admitted, the FISA law clearly placed no such broad restriction on foreign wire communications passing through the United States; rather, there had been a far more narrow problem involving e-mails for which the recipient's location could not be determined. And as James Bamford explained in his essential 2008 book, The Shadow Factory, the delay in getting wiretaps running on the suspected kidnappers was the result of a series of missteps at the Justice Department, not the limits of FISA — no surprise, since even when FISA does require a warrant, surveillance may begin immediately in emergencies if a warrant is sought later. (The suspected kidnappers, by the way, turned out not to have been the actual kidnappers.) Yet on the basis of such claims, a panicked Congress signed off on almost limitless authority to vacuum up international communications — authority that we already know has resulted in systematic "overcollection" of purely domestic conversations, and even resulted in the interception of former President Bill Clinton's e-mails.

In theory, the purpose of building "sunset" provisions into these new powers was to allow — indeed, to force — Congress to consider what changes might be needed in the event of such misuse. Given the incredible secrecy of intelligence investigations, this would be a dubious check even under ideal circumstances. But what's truly astonishing is that even known abuses don't seem to have given legislators second thoughts about resisting administration demands.

Among the reforms in Feingold's JUSTICE Act was a measure requiring targets of "roving" wiretaps to be identified, as is required under criminal wiretap statutes, rather than merely described. Unlike criminal taps, FISA eavesdropping tends to be extraordinarily broad, with any innocent communications picked up "minimized" later. Yet "minimization," the legal procedures meant to protect the privacy of innocent Americans when their communications are swept up in a FISA wiretap, does not mean deletion. In a 2003 case, US v. Sattar, prosecutors submitted 5,175 recordings made under FISA that had not been "minimized." Yet, faced with disclosure obligations at trial, it turned out that they were able to produce a far greater volume of recordings: more than 85,000 audio files.

Given that breadth, the risks inherent in "John Doe" warrants, which neither name a specific phone line or Internet account in advance nor identify a target, are obvious. Indeed, a 2005 Inspector General report on the FBI's translation backlogs revealed that among the eighty-seven years' worth of foreign language material recorded FISA in 2004 alone — a tiny fraction of what the NSA collects — there were an undisclosed number of "collections of materials from the wrong sources due to technical problems." Feingold's proposed change was not even publicly debated.

Still harder to justify is the unwillingness to rein in NSLs, now issued by the tens of thousands annually — the majority of which are for the records of US persons. The Senate did see fit to make some modest changes to the NSL gag orders that prohibit recipients from talking about them — orders federal courts had already found unconstitutional in their present form. But there seemed little concern that the massive expansion in the scope of NSL authority under the Patriot Act and subsequent legislation had given rise to the endemic misuse of the letters discovered in two Inspector General reports. As IG Glenn Fine testified in September, two years after that first report, the FBI has still not produced the new internal guidelines his office recommended.

Fortunately, not all legislators are quite so willing to accept the "trust us" standard of the Bush years. Several House Democrats are requesting more public information about the use of 215 orders in particular, and there is still plenty of time to fix the flaccid bill produced by the Senate Judiciary Committee. It will take courage to push back against glib assurances that we can be made safe from terror only if Americans' private records can be vacuumed into vast databases with few limits. But if Democrats want to project real toughness in the national security arena, this would be a good place to start.

Joining such former CIA heads as George Tenet and Michael Hayden in their conviction that national security will be damaged by further chilling CIA interrogators' effectiveness (because of more investigations) were six Republican members of the Senate Select Committee on Intelligence, who declared (Washington Post, Sept. 26) "that they will no longer participate in an investigation into the Bush administration's interrogation policies" by that Senate committee.

The alarmed Republican senators agree with President Obama's pledge to "look forward, not backward." But, on the other hand, along with the indignant former CIA directors, these senators, like many other congressional Republicans, disagree with Abraham Lincoln's currently unfashionable principle:

"I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts."

Agreeing with President Lincoln's confidence in "We the People," 12 former intelligence officers and analysts sent a letter (Common Dreams, Sept. 28) to President Obama in "strong support for Attorney General Eric Holder's authorization of a wider investigation into CIA interrogation. We respectfully disagree with the direct appeal to you by seven former CIA directors to quash that wider investigation."

These dissenting truth-seekers included CIA veterans going back to the regime of CIA Director Allen Dulles, which began in 1953. They cite the recently released explosive 2004 investigation by former CIA Inspector General John Helgerson, showing "the role of CIA directors in issuing orders that led to inappropriate behavior, and their failure to hold officers accountable."

This dereliction of duty at the top of the CIA, say the 12 alumni of the intelligence services, "helped create the environment in which abuses occurred."

It's no wonder that the seven former CIA directors are insistent that there be no investigations of the shadowy past. Indeed, the 12 former intelligence professionals fully understand the objections of the CIA chiefs, telling President Obama in their letter to him:

"Among the former CIA directors who... asked you to 'reverse' the attorney general's decision are some who were cognizant of and involved in decisions that led to the abuses in question. We find that troubling."

So should President Obama be troubled.

This is hardly the first time we hear whistleblowers with extensive experience within the CIA. Inspector General Helgerson credited troubled CIA agents for telling him of their concerns as he was researching his 2004 report. And Shane Harris, in revealing "No More Secrets in Langley?" (National Journal, Sept. 26), confirms that:

"Throughout 2003, investigators in the inspector general's office reviewed more than two year's worth of the CIA's interrogation activities, interviewing officers who feared their actions would be exposed publicly and that they would face criminal prosecution and abandonment by their bosses."

The Helgerson report added: "A number of agency officers expressed unsolicited concern about the possibility of incrimination or legal action resulting from their participation. A number of officers expressed concern that a human-rights group might pursue them," and one of them feared being hauled before the World Court on charges of having been involved on war crimes. And, if that dreaded day came, they believed "the agency would not stand behind them."

I hope that some brave person high in the Obama administration will show President Obama the Shane Harris article, "No More Secrets in Langley?" which — after citing the New Testament's adjuration on the wall of CIA headquarters that the "truth shall make you free" — notes:

"The CIA has never been exclusively interested in truth. But it has survived this long by knowing it (the truth), and often by being the only one to know it. Those days are over."

Among the many resounding, continually contemporary quotes from Justice Louis Brandeis through decades, the most famous — and one that President Obama cannot continue to escape — is: "Sunlight is the best disinfectant."

Brandeis also continually reminds us: "Those who won our independence through revolution were not cowards... They did not exalt order at the cost of liberty."

And the Founders certainly did not fear looking backward. Nor should "We The People of the United States." What would the Founders have thought of the six Republican members of the Senate Select Committee on Intelligence who could not bear hearing and acting on "the real facts" (in Lincoln's words) — and ran out of the hearing room?

The USA PATRIOT Act, a vast expansion of the American intelligence community's search and surveillance powers, was passed in haste in the wake of the 9/11 terror attacks. Now a new administration may finally have given Congress the leisure to repent. Last month, lawmakers on both sides of Capitol Hill held hearings to consider three important surveillance provisions slated to "sunset" at the end of the year. The Obama administration has requested that all three be renewed, but also announced its willingness to consider "modifications to provide additional protection for the privacy of law abiding Americans." Some prominent Democrats see the coming legislative tussle over whether and how to renew those provisions as an opportunity to finally halt the runaway expansion of executive snooping authority, from National Security Letters to secret "sneak-and-peek" searches.

Competing reform proposals have been offered up by Sen. Patrick Leahy (D-Vt.) and Sen. Russ Feingold (D-Wis). While Feingold's bill is by far the more sweeping; like Leahy's it provides for the renewal of roving wiretap authority and expansive powers to acquire business records and other "tangible things," albeit with extensive modifications to strengthen oversight. But unlike Leahy's bill, Feingold's wisely allows the PATRIOT Act's so-called "lone wolf" authority to expire entirely.

The extraordinary tools available to investigators under the Foreign Intelligence Surveillance Act (FISA), passed over 30 years ago in response to revelations of endemic executive abuse of spying powers, were originally designed to cover only "agents of foreign powers." The PATRIOT Act's "lone wolf" provision severed that necessary link for the first time, authorizing FISA spying within the United States on any "non-U.S. person" who "engages in international terrorism or activities in preparation therefor," and allowing the statute's definition of an "agent of a foreign power" to apply to suspects who, well, aren't. Justice Department officials say they've never used that power, but they'd like to keep it the arsenal just in case.

As with so many of the post-9/11 intelligence reforms, the lone wolf provision has its genesis in the misguided assumption that every intelligence failure is evidence that investigators need more power. In the aftermath of the attacks, it was initially alleged that FBI investigators who had wanted to obtain a warrant to search the belongings of so-called "20th hijacker" Zacarias Moussaoui were unable to do so because FISA lacked a "lone wolf" provision. But a blistering 2003 report from the Senate Judiciary Committee tells a very different story. It notes that on 9/11, investigators were able to obtain a conventional warrant using the exact same evidence that had previously been considered insufficient. Worse, the Committee found that supervisors at FBI Headquarters had failed to link related reports from different field offices, or to pass those reports on to the lawyers tasked with determining when a FISA warrant should be sought. Officials in charge, the Senate discovered, fundamentally misunderstood such crucial legal standards as "probable cause" and falsely believed that they could not seek a FISA order unless a target could specifically be tied to a particular, already-recognized terror group.

"In performing this fairly straightforward task," the report concludes, "FBI headquarters personnel failed miserably." They didn't need new "lone wolf" powers; they needed to understand the powers they already had. Nevertheless, new powers were what they were granted, in an ill-considered reform that undermines the vital distinction American law has traditionally observed between domestic national security concerns and foreign intelligence.

Courts have generally been extraordinarily deferential to the executive in the realm of foreign intelligence, and have suggested that the Fourth Amendment's protections against warrantless searches apply only weakly, if at all, in this context. But when it comes to domestic national security investigations, a unanimous Supreme Court has ruled that the usual restrictions remain largely intact. The court clearly saw the involvement of a "foreign power" as providing the distinction between the world of the criminal law's Fourth Amendment protections and the hazy arena where the executive enjoys far greater latitude. The "lone wolf" provision recklessly blurs that line, defying the common sense meaning of an "agent of a foreign power," and giving investigations that belong in the first world a dubious statutory foothold in the second.

To be sure, FISA's definition of "international terrorism" still requires some foreign "nexus" before a suspected lone wolf can be targeted, but the statute provides only the vague guidance that its aims or methods "transcend" national boundaries. Justice Department officials have suggested that the definition would cover a suspect who "self-radicalizes by means of information and training provided by a variety of international terrorist groups via the Internet," making a Web browser the distinction between a domestic threat and an international one. Activities "in preparation" for terrorism, according to the legislative history, may include the provision of "personnel, training, funding, or other means" for an attack.

While it's difficult to be an unwitting "member" of a terror group, nothing in the law requires that the contribution a lone wolf makes to terror activities be a knowing one. And while definitions of an "agent of a foreign power" applicable to citizens explicitly prohibit investigations conducted wholly on the basis of protected First Amendment activities, PATRIOT appears to permit "lone wolves" to be targeted merely on the basis of advocacy. Finally, while the criminal law requires "preparation" for terrorism to include a "substantial step" in the direction of carrying out an attack, the Justice Department has suggested that FISA's definition does not. Thus, not only may lone wolf suspects be monitored despite the absence of ties to a terror group, they may not even need to be engaged in criminal conduct.

Though the standard of proof needed to target a person under FISA is clearly lower than under criminal law, the surveillance powers it affords are substantially broader. Title III, the statute covering criminal wiretaps, requires evidence of a "nexus" between suspected criminal activity and each location or communications facility monitored. Even then, agents are only supposed to record conversations that are pertinent to the investigation. Once someone is designated an "agent of a foreign power," by contrast, FISA permits broad monitoring coupled with "minimization" — the purging of irrelevant communication, such as the conversations of innocent housemates — "hours, days, or weeks after collection." Though targets of Title III surveillance are typically informed of the eavesdropping eventually, after the investigation has finished, FISA targets usually are not, enhancing the secrecy of intelligence practices, but removing a powerful check against abuses.

All of these significant differences make sense in the context of spying aimed at a member of an international terrorist conspiracy. But the lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools designed for Al Qaeda and the KGB to be used against people more reasonably seen as criminal suspects — and in the process, against any Americans who happen to have interactions with them.

Eugene Robinson quoted James H. Bray, president of the American Psychological Association: "It is unthinkable that any psychologist could assert that stress positions, forced nudity, sleep deprivation, exploiting phobias, and waterboarding — along with other forms of torture techniques that the American Psychological Association has condemned and prohibited — cause no lasting damage to a human being's psyche."

And, in a letter that American Medical Association officials sent to President Obama in April, they stressed that doctors "must not monitor interrogations with the intention of intervening in the process, because this constitutes direct participation."

But will either the AMA or the APA join Physicians for Human Rights in calling for full investigation and accountability for these health professionals' actual participation in war crimes under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — as well as the Geneva Conventions and the U.S. Torture Act?

And does Obama, in his yearning to look forward and not back, have anything to say about investigating war-crimes charges against these licensed guarantors of care of our bodies and psyches?

The United States signed the international treaties it violated.

The first national whistleblower on these accomplices in torture was Dr. Steven Miles, a practicing physician, professor of Medicine at the University of Minnesota Medical School and a member of its Center for Bioethics. His book, Oath Betrayed: America's Torture Doctors (now available in paperback, University of California Press), also demanded accountability for those doctors and psychologists, but went much farther up the chain of command to target a very key official legitimizer of this torture policy.

On April 16, 2003, Secretary of Defense Donald Rumsfeld sent a memorandum, "Counter Resistance Techniques in the War on Terror," to the Commander, U.S. Southern Command.

Rumsfeld ordered a medical partnership of "counterresistance" — interrogation for 20 hours, which he approved, that included "deprivation of light and sound...." For any nation considering these techniques as inhuman, Rumsfeld declared that "provisions of the Geneva Convention are not applicable to Guantanamo detainees."

Now, here in the memorandum is where doctors and psychologists become deeply involved in torture. Wrote Rumsfeld: "Interrogations must always be planned, deliberate actions that take into account...a detainee's emotional and physical strengths and weakness."

The Secretary of Defense said flatly: "Interrogation approaches are designed to manipulate the detainee's emotions and weaknesses to gain his willing cooperation."

Willing?

The Secretary of U.S. Torture Policy continued as an example: "The use of isolation as an interrogation technique requires detailed implementation instructions ... including medical and psychological review ... including the presence or availability of qualified medical personnel." And Dr. Steven Miles added very significantly:

"Rumsfeld's proposal that interrogation plans coercively 'manipulate the detainee's emotions and weaknesses' implicitly invited employing medical information for interrogation purposes. ... Secretary Rumsfeld's interrogation policy was now ready to pass down the chain of command to Guantanamo and Afghanistan."

What sort of medical information to exploit prisoner's phobias? "Fear of the dark, of being alone," Miles reports in Oath Betrayed. Or "medical conditions that could be exploited" to break a prisoner.

In the Physicians for Human Rights report, "Interrogators would place a cloth over a detainee's face to block breathing and induce feelings of fear, helplessness, and a loss of control. A doctor would stand by to monitor and calibrate this physically and psychologically harmful act, which amounts to torture." The doctor stood by and did not intervene.

But this and other forms of official torture (though never called that) were authorized at the very top of the chain of command. On Feb. 7, 2002, President George W. Bush signed a memorandum: "Pursuant to my authority as Commander in Chief and Chief Executive of the United States...I accept the legal conclusion of the Department of Justice and determine that none of the provisions of (the) Geneva (Conventions) apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world." Go to it, Secretary Rumsfeld!

But President Obama opposes an investigation of war crimes beyond a noncriminal inquiry of a small number of CIA interrogators in the field. A majority of the present Congress agrees with him on these limits. Do you?

Oh, in that 2002 memorandum, Bush emphasized hollowly: "Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment." It's not only Bush. President Obama and CIA Director Leon Panetta are continuing CIA "renditions" of detainees to other countries for their skills in interrogations. American values?

George W. Bush may have left D.C., but the vast surveillance machine he spent eight years building via the PATRIOT Act hums merrily along. Whether or not that continues could well be determined today, as the Senate Judiciary Committee meets to mark up legislation renewing a series of PATRIOT Act powers due to expire at the end of the year. Barack Obama's Justice Department has said it's open to "modifications" of the expiring powers — but some Democratic legislators see an opportunity to revisit and revise the whole architecture of post-9/11 spying law.

If history is any guide, press attention will focus overwhelmingly on a proposal to repeal the controversial immunity Congress retroactively granted to telecoms that participated in the National Security Agency's extralegal program of warrantless wiretaps. Far more consequential for the privacy rights of Americans, however, are two surveillance powers that would finally be subject to reasonable limits by the ambitious JUSTICE Act, sponsored by Sen. Russ Feingold, a Democrat from Wisconsin: National Security Letters and the sweeping wiretap authority granted by the FISA Amendments Act. Today's markup will focus on a far more modest renewal and reform bill sponsored by Sen. Patrick Leahy, a Democrat from Vermont and the commission's chair, but civil libertarians are hoping elements of Feingold's more sweeping effort will make it into the text ultimately sent to the full Senate. Of all the vital privacy safeguards Feingold has proposed, the provisions fixing NSLs and the FISA amendments are probably the most important.

Once upon a time, National Security Letters were an important but narrowly limited investigative tool. They were designed to permit investigators to obtain very basic information about customers from financial institutions and telecom providers without having to obtain a full-blown search warrant. After 9/11, however, Congress turned the NSL into a blank check, massively expanding the range of businesses from which records could be sought and the types of information that could be obtained.

As David Kris, now Obama's assistant attorney general for national security, explained in his book on national-security investigations, current law "allows the government to use an NSL to request almost any record concerning a customer from traditional financial institutions (such as banks) as well as from virtually any commercial or government entity that handles cash transactions with customers." No judicial approval is necessary, and the people whose records are handed over need not be suspected of any wrongdoing: The FBI just needs to deem the records "relevant" to an investigation. NSLs typically come with hard-to-challenge gag orders that prevent the businesses served from ever talking about them — orders that courts have found raise serious First Amendment concerns.

It should come as no surprise that such broad power has given rise to abuses. An investigation by the department's inspector general found endemic misuse of NSL powers, including the improper use of "exigent letters" when no true emergency existed. In at least one case, the FBI sought records by court order, was rejected, then turned around and obtained the records anyway using an NSL. As the FBI itself admits, the letters are most frequently used in the early phases of an investigation to "close down leads," suggesting that many — perhaps most — of the people investigated are innocent of any wrongdoing.

In 2008, the Bureau issued 24,744 of those letters and obtained information about 7,225 Americans — assuming that they've managed to start providing accurate data to Congress, something else the inspector general found they had trouble with. (That number is down from an astonishing 2004 peak of more than 56,000 letters issued.) But at least they're getting rid of all those innocent people's information once they're cleared of suspicion, right? Not a chance. The FBI maintains a vast database that now houses over 1.5 billion government and private-sector records, on the theory that all that data can be "mined" to spot suspicious patterns.

The Leahy bill would at least require something a bit more substantive than a vague assertion of "relevance" before an NSL could be used: Anyone thought to have any direct contact with a suspected terrorist would still be fair game, but six-degrees-of-separation fishing expeditions would be barred. Feingold's proposal goes further, restoring NSLs to their original purpose of obtaining basic, nonsensitive data, and requiring investigators to seek an order from a judge when they want to dig deeper.

Entirely absent from Leahy's bill is any mention of the FISA Amendments Act, which gave the attorney general sweeping discretion to authorize broad programs of electronic surveillance "directed at" foreign targets, subject to only the most anemic judicial oversight. The bill permits the NSA to conduct broad "vacuum cleaner" surveillance of international communications — to suck up the haystack and sift it for needles later — including Americans' communications with people overseas. Earlier this year, The New York Times reported that the agency was having trouble staying within even these incredibly capacious limits: Intelligence officials say there has been a "significant and systemic" problem with the "overcollection" of Americans' purely domestic communications.

The JUSTICE Act would shut off the vacuum cleaner, prohibiting "bulk collection" and requiring that wiretaps record only communications where at least one party is an actual target. It would also strengthen the prohibition on "reverse targeting" to ensure that eavesdropping nominally "directed at" an overseas target could not be used as a pretext to spy on Americans. Perhaps most important, it would require that conversations between Americans and people abroad be collected only when there was some specific reason to believe the particular communication was related to terrorism.

Civil liberties advocates have hastily revived a campaign to support commonsense limits on government surveillance, but with health-care reform dominating headlines and anxieties about the Bush administration's excesses fading like the memory of a bad dream, precious little attention is being paid to the PATRIOT renewal debate. But if the Senate declines to press for real reform this week, the issue is unlikely to be taken up again for at least another four years — during which those new powers will only become more entrenched, more heavily relied upon, and more difficult to roll back. It's no exaggeration to say that today may well be the most important day of the Obama administration for privacy and civil liberties — or the biggest squandered opportunity.

The first book devoted to this proposition, Glenn Sulmasy's The National Security Court System: A Natural Evolution of Justice in an Age of Terror, advances the idea of a new "third way" to take federal terrorism charges out of normal district courts and into a new civil-military hybrid tribunal.

Sulmasy begins with a good summary of how military commissions have historically been prone to abuse. Andrew Jackson used military commissions to try American citizens in New Orleans after successfully repelling British forces in the War of 1812, imposing martial law on the city until a formal declaration of peace arrived. When a local civilian, Louis Louallier, criticized the decision in a local newspaper, Jackson ordered him arrested and tried before a military tribunal for "inciting mutiny and disaffection in the Army." When Louallier filed and received a petition of habeas corpus from a federal district judge, Jackson ordered the judge arrested as well. After Louallier's acquittal, Jackson disregarded the verdict and kept him in jail until the end of the war. Jackson released the judge, but "asked" him to remain outside of the city limits until the war was officially over.

Sulmasy also gives the reader a history of the use of military commissions in the Civil War and World War II, where FDR used a hastily-assembled military commission to try eight German saboteurs that washed up on American shores intending to conduct a campaign of sabotage. The Supreme Court upheld their conviction, and this precedent was used after September 11, 2001 to justify President Bush's commission system at Guantanamo Bay.

Sulmasy argues that the Supreme Court's invalidation of the military commissions in Hamdan v. Rumsfeld was wrongly decided, as was the decision to grant detainees the right to file petitions of habeas corpus in Boumediene v. Bush. Unsurprisingly, his proposal for a national security court system shares much with Bush's original conception of military commissions, but he goes even further by trying to revive many proposals that would roll back core civil liberties.

In Sulmasy's proposed "national security court," suspected terrorists would be tried in front of a panel of three federal judges, violating their Sixth Amendment right to a jury trial. Defendants would be detained, tried, and imprisoned on military bases, a practice out of step with a federal statutory bar to the military's direct participation in domestic law enforcement. The Bush administration kept its military commissions more palatable for the public by keeping American citizens and aliens detained in the United States out of Guantanamo. Sulmasy proposes that we bring Gitmo home and open its doors to citizens and non-citizens alike.

Sulmasy does endeavor to solve one perceived problem with the military commissions that military lawyers have expressed to me: few courts-martial deal with contested felony charges, so most military lawyers have little courtroom experience. We are now entrusting them with the biggest trials of our time. Sulmasy proposes to fix this by using veteran federal prosecutors instead. The catch? The defense counsel would be those same military lawyers he says are not up to the task of prosecuting the case, unless the defendant could afford his own attorney with a high-level security clearance.

Sulmasy also reduces the core protections of defendants by barring the use of the exclusionary rule, the doctrine that bars evidence collected illegally or otherwise in violation of the law. Without the prospect of excluding evidence collected in ways barred by federal courts, there is no incentive for law enforcement officers to follow any rules. Looking for terrorists? No warrant? No problem.

Sulmasy attempts to allay fears of lost civil liberties by claiming that this court's jurisdiction is limited to "international terrorists" such as al Qaeda and their ilk. In this, he falls into the trap that Benjamin Wittes, another proponent of national security courts, warns us of:

"a slippery slope in which what they approve for Khalid Sheikh Mohammed today the government will use for someone like Jose Padilla tomorrow, a minor drug offender next week, and a political dissenter five years from now."

Sulmasy makes the leap from Khalid Sheikh Mohammed (a non-citizen terrorist organizer) to Padilla (a citizen terrorist operative) immediately, leaving the rest of the downhill slide to broader jurisdiction to an aggressive prosecutor's argument or a subsequent change in the court's authorizing statute.

After all, with an increasingly connected world, the definition of "international terrorist" is an elastic term. Would someone have to have orders from abroad to be "international"? If so, then Jose Padilla, alleged "dirty bomb" plotter, certainly qualifies. What about two American citizens who traveled overseas to help suicide bombers planning to infiltrate Iraq and attack American troops? What about a native-born American citizen who met with like-minded extremists in Canada and sent surveillance videos of potential targets to a radical in London? Federal courts dealt with all of the above. No special court needed.

The transition to prosecuting drug charges in a national security court is no great leap either. We already have a federal narco-terrorism statute, a long-standing "war on drugs," and a government ad campaign telling us that buying drugs supports terrorism financing.

For all of the courage that Sulmasy exercises in giving a specialized court extraordinary power, he shies away from letting terrorists lose when they unleash a tirade in the courtroom. While he claims that it is necessary to close sessions of court so that "hearings do not become propaganda tools for the enemy," this is part and parcel of letting civil society defeat violent extremists in the marketplace of ideas. The disgruntled student who drove through the center of the University of North Carolina and wounded nine had such an outburst (which you probably wouldn't know about unless you read it here) and is now serving a minimum of 26 years in a state prison. At his sentencing, Shoe Bomber Richard Reid slandered the court and declared that he was at war with the United States. Federal District Judge William Young told Reid, "You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature." Reid received three life sentences plus 110 years, which ended the debate rather firmly.

Sulmasy tries to work up the reader with potential legal fallout from the Boumediene decision, alarming us with the prospect of civilian courts requiring soldiers and Marines on the battlefield to get a search warrant before they enter an al Qaeda safehouse. The Supreme Court has held that the Fourth Amendment protection against unreasonable searches and seizures does not have any extraterritorial application, so this simply doesn't hold water.

To be fair, Sulmasy comes by his convictions that blend military force and law enforcement honestly. He is a Coast Guard officer and teaches law at the Coast Guard Academy. The Coast Guard is the only uniformed service that falls under the Department of Homeland Security and not the Department of Defense (www.uscg.mil tells you that they fall under Homeland Security — should it be .gov instead?). Coasties conduct rescues at sea, drug interdiction, and combat missions in the waterways of Iraq, so he may be more comfortable blending the military with civil society in a way that would have the rest of us crying Posse Comitatus.

Sulmasy's book is a valiant attempt to resuscitate ideas that have been rejected by the courts and policymakers. In the end, his case falls short. President Obama moved a domestically-detained enemy combatant into federal court to stave off a likely defeat at the Supreme Court. President Bush decided that the Lackawanna Six should be apprehended by federal agents, not the Army. Our civilian law enforcement agencies and courts have adapted to the problem of terrorism just as they did to the Klan and the mob. What is appropriate on the battlefield is simply too much for downtown Buffalo.

Despite all the attention and furor when the former CIA Inspector General's 2004 report was finally released through an ACLU lawsuit - to the rage of objectors Dick Cheney and CIA Director Leon Panetta - the continuing debate has yet to focus on, and deal with, the Physicians for Human Rights Aug. 31 report:

"Aiding Torture: Health Professionals' Ethics and Human Rights Violations Demonstrated in the May 2004 Inspector General's Report" - with additional incriminating details that "CIA Health Professionals' Role in Torture Worse Than Previously Known."

The startling indictment is that "health professionals were involved at every stage in the development, implementation and legitimization of this torture program." They were as disgracefully complicit as John Yoo and the other Justice Department lawyers who provided torturously manipulated "legal" cover to the CIA and its bosses in the Defense department and the Oval Office.

Preceding the waterboarding, the confinement of battered, shackled terrorism suspects in boxes so small they could only crouch, very prolonged sleep deprivation, et al, there was the "intake process closely linked to the process of interrogation."

As Dr. Steven H. Miles painstakingly described in his path-breaking accounts of the self-degradation of these health professions - "Oath Betrayed: America's Torture Doctors" (paperback, University of California Press, 2009) - the psychologists had information about the prisoners to indicate their possible phobias and other vulnerabilities. They informed the interrogators using "enhanced" techniques on how best to "crack" these suspects.

Furthermore, "by requirement," Physicians for Human Rights reports, "all interrogations were monitored in real-time by health professionals." They not only saw it all as it happened but were committed to making the torture as effective as possible.

For instance, "a medical device called a pulse oximeter (a device to measure oxygen saturation in a subject's blood) was placed on the finger of a detainee to monitor the effectiveness of his respiration during waterboarding ... to calibrate physical and mental pain and suffering." Don't let up now!

Since there is clear evidence of deaths during interrogations - from Defense Department autopsy reports obtained by the ACLU and the scrupulous reporting of the New Yorker's Jane Mayer - did any of these on-the-spot doctors and psychologists intervene before it was too late?

What makes this Physicians for Human Rights documentation so nightmarish are the details. For example, we've heard of suspects often being hooded. What's so terrible about that? But what was hooding actually like? Will we ever know?

This PHR report quotes from a February 2004 report by the International Committee of the Red Cross (ICRC) on interrogations in Iraq, but as PHR has previously noted, "hooding was used both during transportation and during interrogation," not only in Iraq. And we can only guess what special forms of hooding were invented in the CIA's secret prisons.

This is what the ICRC found: "Hooding (was) used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. One, or sometimes two bags, sometimes with an elastic blindfold over the eyes which, when slipped down, further impeded proper breathing." And during beatings, the hooded prisoner was all the more anxious and apprehensive as to when the blows would come and where.

Also, "Hooding could last for periods from a few hours to up to 2 to 4 consecutive days, during which hoods were lifted only for drinking, eating or going to the toilets."

And where were the doctors and psychologists?

One detainee cited in the ICRC report, Mr. Bin Attash, claimed he was forced to wear a diaper for a long time. He told the International Red Cross "on several occasions the diaper was not replaced so he had to urinate and defecate on himself while shackled in the prolonged stress standing position."

And "three other detainees specified that they had to defecate and urinate on themselves and remain standing in their own body fluids." Physicians for Human Rights adds: "The placement of a normally continent adult in a diaper will likely lead to efforts by the adult to resist urination or defecation, which in turn will likely result in bowel cramping and bladder spasm."

Calling this, and so much more, "an unconscionable affront to the practice of medicine" (and psychology), Physicians for Human Rights, as I'll report next week, has urgent recommendations on the accountability of health professionals for these affronts - committed in plain view of professional "caregivers" - in the name of all us Americans.

And strikingly, he added, "Many expressed to me personally their feelings that what the Agency was doing was fundamentally inconsistent with long established U.S. Government policy and with American values, and was based on strained legal reasoning." (Washington Post, Aug. 24).

In my 2004 book, The War on the Bill of Rights and the Gathering Resistance, I quoted several of these rebel interrogators, including 27-year-FBI-veteran Jack Cloonan, senior case agent on the FBI's "Bin Laden Squad." He was giving instructions to the FBI interrogators of prominent Al Qaeda official Khalid Sheikh Mohammed (KSM) at a secret prison at Bagram Air Base in Afghanistan. He told them to follow the procedures we had adopted as if they were talking to this person in New York." Subsequent CIA interrogators of the notorious KSM disagreed and used "black site" procedures.

Now, Cloonan has returned to this grimly festering debate amid the furious outcry by Dick Cheney, present and past CIA directors, and Republican leaders that even the narrow preliminary inquiry Attorney General Eric Holder has ordered on CIA methods will have — as House Minority Leader John Boehner warns — "a chilling effect on the ability of our intelligence professionals to do their jobs."

On Aug. 21, Cloonan was one of three signers of a letter to the chairmen of the House of Senate Judiciary and Intelligence Committees. Joining Cloonan was Steven Kleinman. With more than 20 years in the field, Kleinman is one of the Defense Department's most experienced interrogators and recently was a senior adviser on a study of strategic interrogation for the Director of National Intelligence. Kleinman has conducted interrogations in three separate military campaigns.

The third signer, Matthew Alexander, has intensive experience, including having been the senior interrogator for the 2006 task force that tracked down exceptionally dangerous Al Qaeda leader in Iraq, Abu Musab al-Zarqawi. For security reasons, he uses a pseudonym. (PublicRecord.org, Aug. 23)

Starkly, their letter insisted that "prosecutions of individuals who violated anti-torture statues alone ... will not prevent policy makers from making similar mistakes in the future. At the heart of the policy decisions buttressing interrogators' use of torture and cruelty lay closed processes that have yet to be scrutinized with cool heads and wise counsel." (The Washington Independent, Aug. 24).

Therefore, "a nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty."

In directly urging President Obama to appoint this nonpartisan commission, "not to look backward but to provide recommendations for the future," these deeply seasoned interrogators emphasize that such an independent review, which perforce must go up the chain of command, including Justice Department lawyers who created "the torture memos," will "strengthen our system of checks and balances so that when faced with the next challenge, we get it right."

During an interview with Jason Leopold of The Public Record (pubrecord.org), Aug. 23, Kleinman said — Mr. President take heed — "I've had the honor of testifying before four committees of Congress and I am always astounded at the profound political partisan politics that surround this issue. I'm a professional interrogator. I have 25 years of experience in this and I don't have any concern whatsoever that an investigation into how we conducted ourselves since 9/11 would in any way undermine our ability to continue gathering intelligence."

Significantly, in this land of the free and home of the brave, Kleinman added: "I have friends in the intelligence community who won't speak up because to do so is almost a career-ender."

And that might well happen with Leon Panetta as director of the CIA. But we have a tradition in this country going back to the Founders — who would have been hanged by King George III if the American Revolution had not succeeded — of speaking up to power. If I were still teaching what used to be called civics (which has largely disappeared from many schools), I would discuss with students whether they agree that Jack Cloonan, Steven Kleinman and Matthew Alexander exemplify the actual meaning of patriotism.

President Barack Obama, if he has the courage, should invite these rebel interrogators to the White House to confer with him on Kleinman's advice from the field: "We have to look back to show our utmost vulnerabilities."

And I hope that Sen. Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, would also be there. He might tell the president about Vermont's patriot of the American Revolution, Ethan Allen, and the Green Mountain Boys: They weren't afraid to speak up.

How many of us across the land will speak up for a nonpartisan independent commission so that, with terrorists around the world not going away, we get it right next time?

On Aug. 24, the very day the Helgerson report was released (despite strenuous objections by CIA Director Leon Panetta), a military judge at Guantanamo Bay denied access to one of the CIA's former "black sites" by a defense lawyer for an accused 9/11 co-conspirator, Ramzi Bin al Shibh. (Aug. 25, Miami Herald).

His lawyer, Navy Cmdr. Suzanne Lachelier, says it's necessary to learn details of her client's interrogation at that secret CIA prison before he was shipped to Guantanamo Bay. In view of the brutal interrogations disclosed in many previously documented reports about the "black sites," she is trying to determine whether her "high value" client suffers from a permanent psychological disorder that would prevent his being competent to stand trial.

A Guantanamo Bay military judge, Col. Stephen Henley, denied her access to the CIA prison on the national security grounds that classified information might be disclosed on what happened to Ramzi Bin al Shibh there. There has been no objection to that ruling from the Obama administration.

But what "classified" interrogation details could still be hidden there? We now know (New York Times, August 26) that the CIA's "secret interrogation program operated under strict rules... managers, doctors and lawyers not only set the program's parameters but dictated every facet of a detainee's daily routine, monitoring interrogations on an hour-by-hour basis."

If we are to believe this proud declaration by the CIA, it reveals how fastidiously the Bush-Cheney administration executed its policy of "cruel, inhuman or degrading treatment" forbidden by the international Convention Against Torture, the Geneva Conventions (both of which we signed), our own torture laws and the Supreme Court's 2006 Hamdan v. Rumsfeld decision.

Should you doubt our torture policy existed, see actual official government documents (including autopsy reports of suspects killed during interrogation) in "Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond" (Columbia University Press, 2007) by the ACLU's Jameel Jaffer and Amrit Singh.

Surely, the CIA has a record of Ramzi Bin al Shibh's stay in one of its "black sites" so that at his so-called trial at Guantanamo, he will have the fundamental due process of our rule of law on whether the CIA made him so unfit he cannot stand trial.

What is the CIA hiding, and not only in this case? Keep in mind that of the 109 pages on the widely discussed CIA Inspector General report, 36 pages were completely blacked out, and 30 more were largely blacked out (ABC News. Aug. 25). Moreover, ABC's Brian Ross and Matthew Cole alarmingly disclose:

"The CIA and the Obama Administration continue to keep secret some of the most shocking allegations involving the spy agency's interrogation program: three deaths and several other detainees whose whereabouts could not be determined, according to a former senior intelligence official who has read the full, unredacted version."

Beyond the inflammatory Helgerson report, there will be much more to come if we ever get a full-scale, bipartisan criminal investigation with subpoena powers, not only of "the black sites" but all the way up the chain of command to the highest-level officials and their lawyers, who have yet to be held at all accountable for the war crimes — and that's what they are in U.S. and international law — committed in our name.

As for the continuing secrecy of the far from self-declared "transparent" Obama administration, little attention has been paid to the former CIA Inspector General's recent statement in the Aug. 24 Washington Post in which he said:

"I am disappointed that the Government did not release even a redacted version of the Recommendations (I made), which described a number of corrective actions that needed to be taken."

Why do Attorney General Eric Holder and President Barack Obama hide these recommendations by the former Inspector General? Because they don't want to act on them?

At the smoldering core of what will inevitably, blazingly erupt is the statement by a then much-respected national veteran of public service in the January/February/March 2008 Washington Monthly:

"We have made clear that there are certain lines Americans will not cross because we respect the dignity of every human being...We are sworn to govern by the rule of law, not by brute force...We cannot simply suspend these beliefs in the name of national security.

"Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don't. There is no middle ground."

Startlingly, the definer of these battered American values was Leon Panetta, President Barack Obama's choice to be present director of the CIA!

But Panetta now intensely opposes even Holder's very narrow preliminary investigation of the CIA's "enhanced interrogations." Like the president, Panetta prefers to look forward, as the nonpareil baseball legend Satchel Paige advised: "Don't look back — something might be gaining on you."

It's too late, Mr. President and Mr. CIA Director.

Attorney General Eric H. Holder Jr. has appointed a special prosecutor to review CIA interrogations of terrorist suspects, but the investigation shouldn't stop with the agency. No one should be above the law — least of all top policy-makers.

Investigating officials from the past administration is bound to be controversial. President George W. Bush and his aides undoubtedly did what they thought was right. There was no need, though, to sacrifice the Constitution and civil liberties to protect the American people from terrorism. As President Obama observed in his inaugural address, "We reject as false the choice between our safety and our ideals."

Those ideals require an impartial investigation of any Bush administration officials who may have violated the law. There is ample evidence that torture occurred, and that its use was debated and decided at the upper reaches of the White House. Policy-makers bear the principal responsibility.

Policy disagreements are not at issue; liberal democracy requires political conflict. Arrest and prison are appropriate only when those in authority break the basic rules.

In the same light, there should also be an investigation of Bush administration warrantless wiretapping in violation of the Foreign Intelligence Surveillance Act. The administration made a number of extravagant claims to justify ignoring FISA. The most serious was that, as the military commander in chief, the president had the authority to ignore an express congressional enactment in this area.

Being commander in chief gives the president extensive discretion when it comes to operational issues. However, the Constitution tasks Congress with creating the broad legal and administrative frameworks within which military and intelligence operations occur.

Indeed, the Constitution gives Congress almost all war powers other than operational command. The legislature raises the military, declares war, and has the power "To define and punish ... offenses against the law of nations"; "make rules concerning captures on land and water"; "make rules for the government and regulation of the land and naval forces"; and "make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

In the area of war-related surveillance, if Congress does not legislate, the president may act. However, if Congress chooses, for example, to require a warrant before the executive branch is allowed to spy on Americans, the president has the responsibility to "take care that the laws be faithfully executed."

If Bush and those around him thought that the congressionally prescribed procedures were inadequate, they should have requested additional legal authority from Congress. It seems likely that it would have been granted. Even the Democratic Congress elected in 2006 acquiesced to administration pressure to weaken FISA.

The Obama administration has been nervous about prosecuting Bush officials, lest it be accused of conducting a partisan witch-hunt. But Obama has an obligation to hold accountable any government official who broke the law. A democratic republic requires public accountability to survive.

At the very least, executive lawbreaking requires an investigation. The people should know what was done in their name. Moreover, policies and procedures should be adopted to make it harder for future officials to follow suit.

The administration also must consider prosecution. If high-level government officials can violate the law simply by claiming to believe that their actions are legal, then the law is meaningless.

The U.S. government has prosecuted foreign officials and soldiers for war crimes, including torture. It must hold its own citizens to the same standard.

In his opening address at the Nuremberg trials, chief American prosecutor Robert Jackson said the law must "not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power." And so it must in America today.

The reverberating town-hall meetings are a legacy of the 1765 meeting in Boston where Samuel Adams and the Sons of Liberty organized against King George III and, not having access to the Internet, later started the Committees of Correspondence that alerted all the colonists to insistent royal threats to their personal liberties. During a secret meeting in Virginia, Jefferson helped organize such a committee in his state.

Here and now, as the president decrees that health-care costs must be cut severely, Medicare officials — before there is a final bill from Congress — have been planning to slash payments to many specialists.

"Cardiologists would be especially hard hit," reported The New York Times on Aug. 21, "with cuts of more than 20 percent in payments for electrocardiograms and 12 percent for heart stent procedures."

Said Dr. John C. Lewin, chief executive of the American College of Cardiology: "Cuts of this magnitude could cripple cardiology practices and threaten access to services for millions of patients."

It is because of the life-saving work of cardiologists, over the years, that I am alive and able to write this — and applaud the 150 cardiologists and more than 1,500 patients who organized a health-care rally in downtown Orlando, Fla., on Aug. 21 to protest these Medicare cuts scheduled to take effect Jan. 1. The cuts involve (NYT, Aug. 21) "a variety of standard heart procedures, in some cases by more than one-third" in addition to the two I cited.

Three days before, at a town-hall meeting organized by the wives of two Louisville physicians to directly protest the portents of Obamacare, the invited keynote speaker, Wesley Smith, an internationally known advocate for human rights in health care, expected to talk to maybe 100 people. At least 1,000 Kentucky citizens were there for an event conceived only two weeks before.

According to Senate Majority Leader Harry Reid, those citizens must have been among the "evil-mongers" drowning out national debate with "lies, innuendo and rumor." But Smith tells me that no organization put together the Louisville protest. "People showed up because they are very engaged as citizens about one of the most important domestic policy initiatives in recent times."

To many of us, including doctors, it is the most important issue. Marc K. Siegel, a practicing internist and an associate professor of Medicine at New York's BYU Langone Medical Center — with which my doctors are associated — writes:

"For generations, we doctors have promised our patients that medical advances will allow us all to live longer, more comfortable lives. Now that these results are finally arriving, 'health-care reform' — or 'insurance reform' (as our would-be health czar now calls it) — could snatch the rug out from under us."

If the president succeeds in having Congress enact into law a national federal council to decide the most cost-effective medical care, those national standards will necessarily override which specific care can be most effective for each individual patient. Is expressing that concern, even loudly — about being lost in the abstract whole — what House Speaker Nancy Pelosi calls "un-American" as she scorns these citizen eruptions by latter-day sons and daughters of liberty?

Obviously, there is great need to make health care more equitable, but what Obama's Democratic loyalists are leading us toward has been clearly and ominously described by Michael Gerson ("When Planners Decide Life," Washington Post, Aug. 21).

To counter inefficient, costly medical decisions, Gerson writes, by imposing a national structure "gives government extraordinary power. And the approach taken by planners is, by necessity, utilitarian — considering the greatest good for the greatest number. (Such) decisions cannot be made on a human scale."

We are all individuals!

Siegel adds on a very human level: "Anyone who's been saved from cancer by the latest targeted chemotherapy treatment, had a lung or breast cancer diagnosed early by a CT scan or MRI or returned from the brink of a heart-related death thanks to the newest drug-treated stent understands that some expensive care is well worth the price."

Throughout our history, we've been tested by Jefferson's question: "Who will govern the governors?"

The lack of rigorous debate over this policy is ominous. In the Senate, the hate-crime legislation was not even adopted as a stand-alone measure, but as an add-on to another bill. This relative stealth aside, the flourish of the president's signature pen will radically redraw the boundaries between state and federal jurisprudence.

States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. A counterfeiter can be charged for his funny money in federal court, for instance, and also face murder prosecution by a state if he has moved to eliminate his competition. A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment's demand that no person suffer double jeopardy. In practice, however, this hasn't happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn't have the ability to try or retry a state defendant.

That's what makes the new hate-crime law so remarkable. Its defining feature is not that it allows federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim. What's significant is that it greatly expands the federal government's jurisdiction to prosecute cases that properly belong in a state court.

In legal terms, this law achieves its aims through federal authority over interstate commerce. If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd which is precisely why this law's drastic overreach is so stark. This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.

An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict "left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence."

The term "demonstratively unvindicated" becomes downright Orwellian when applied to the kinds of cases that will inevitably invite public outcry. The crime of rape, for example, is already severely punished by every state but has brand-new implications as a hate crime because it is typically an offense based on gender. And are there any high-profile rape cases that do not produce amplified cries for vengeance?

The protection against double jeopardy was put in place to prevent retrying a politically unpopular but evidentially elusive defendant until he was found guilty. Congress apparently sees this as a glitch, rather than a virtue, in the American criminal-justice system.

The power to reprosecute is not one we should grant to any government, much less one with a politicized selection of who will be haled into court. For evidence, look no further than the Duke lacrosse non-rape case a few years ago. If the trial had gone to court and ended in acquittal, would we now be in federal court for a second round? The recent Department of Justice decision not to prosecute members of the New Black Panther Party who engaged in voter intimidation last November illustrates the flip side of this coin. Decisions to prosecute or not based on race undermine the rule of law.

Politically motivated prosecutions are sure to result from this statute. Attorney General Eric Holder saw fit to lecture America as a "nation of cowards" when it comes to race. He is now empowered with the new hate-crime authority to retry many high-profile cases that split political constituencies on hot-button issues. I have no desire to see what havoc his notions of "courage" will wreak upon fundamental American civil liberties.

John Timoney, Miami's police chief, is a hard-line, law-and-order cop whom I've criticized for his mass arrest of nonviolent protesters - when he was police chief in Philadelphia - without a flicker of probable cause. But I respect what he told Maureen Dowd of The New York Times (July 26) about Gates' arrest:

"There's a fine line between disorderly conduct and freedom of speech. It can get tough out there, but I tell my officers, 'Don't make matters worse by throwing handcuffs on someone. Bite your tongue ..."'

Moreover, as Ronald Hampton, executive director of the National Black Police Association, said after the handcuffing of Henry Louis Gates: "Black men's experience with law enforcement in this country is very different than that experience of whites" (National Public Radio, July 24).

In July of last year, a New York Times/CBS News poll asked: "Have you ever felt you were stopped by the police just because of your race or ethnic background?" Yes, said 66 percent of black men. Also responding affirmatively were 9 percent of white men (New York Times, July 24).

But what about this particular arrest, which has ignited a continuing national debate? The Massachusetts American Civil Liberties Union affiliate reminds us (Slate.com, July 22) claiming racial bias while protesting an arrest is political speech, the core of the First Amendment - and exercising political speech is not disorderly conduct. That was the crime that Gates was charged with when arrested. The Cambridge Police Department, while standing behind Crowley, dropped that charge in the national gust of publicity, and also, I believe, the department knew it would not stand up in court.

Almost lost in the frenzy was Atlanta police officer M. Tate (he wouldn't give his first name) who told the New York Times (July 24) how his police department has trained him not to lose his cool when subjected to angry name-calling. An arrest he said is justified when:

"The set of circumstances ... will lead a reasonable and prudent person to believe that a crime has or is about to be committed and that the person in question is involved in a significant manner." Handcuffs are not warranted, he added, by anything short of that.

Yet Gates' arresting officer, Crowley, has - for the past five years - been training officers at the Lowell Police Academy in how not to engage in racial profiling. But by the time he handcuffed Gates in Cambridge, Crowley knew Gates was in his own house and there was no burglary in progress. If Crowley wasn't racially profiling Gates - as the professor believes he was (New York Daily News, July 25, lead editorial) - then he busted him for political speech.

The sergeant needs more training.Bob Herbert reports (New York Times, Aug. 1) only five or six minutes elapsed between police alert to a possible break-in and the handcuffing of nonviolent Gates.

What was Crowley teaching the Lowell police?

While Obama has been criticized for increasing the media frenzy by charging that Crowley acted "stupidly" (a word he has recanted), the president did otherwise make sense:

"I think we know, separate and apart from this incident ... that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately."

This reporter, having covered the police in New York City since 1958, can further define what Obama refers to as disproportionate police stops of blacks.

In May of this year, the New York Civil Liberties Union (NYCLU) reported, based on police data, that New York City Police Department officers "stopped and interrogated New Yorkers 171,094 times between January and March" - and more than 151,000 of those individuals were sent on their way without charges. Approximately 89,000 of those stopped were black, 56,000 were Latino, and 16,000 were white.

Donna Lieberman, the head of the NYCLU, added: "These New Yorkers' personal information is now stored in an NYPD database."

"The NYPD is, in effect, building a massive database of black and brown New Yorkers," said NYCLU Associate Legal Director Christopher Dunn. Based on what information on those who are not charged? Their color!

Not incidentally, Barack Obama, when he was an Illinois state senator, sponsored legislation to track racial breakdown of drivers stopped by the police. The term, "Driving While Black," is familiar to blacks around the country protesting "disproportionate" police stops on the road and in their streets

Newsday (July 30) quotes 44-year-old Julian Gobourne, black, an information technologist for a bank, that "whites don't understand racial profiling because white people don't experience it negatively."

Accordingly, a July 29 Wall Street Journal/NBC poll disclosed that 4 percent of blacks blamed Mr. Gates for the notorious arrest while 30 percent targeted Crowley. Among white respondents, 32 percent placed responsibility for the arrest on Gates and 7 percent blamed Crowley.

If this "teachable moment" is intended to show how far we still have to go to enter a post-racial society, it has succeeded. To be continued.

In another context, Winston Churchill urged: "Never ever give up!" Nor should we to ensure the Constitution's equal protection of the laws.

On the Senate floor, John McCain, R-Ariz., cut to the unconstitutional core of this bill and all such "hate crime" legislation. Leahy's bill, as of this writing, the president is eager to sign.

Said McCain: "Our legal system is based on identifying, capturing and punishing criminals, and not on using the power of government to try to divine biases." In opposing what James Madison condemned as "thought crimes," McCain added: "Crimes motivated by hate deserve vigorous prosecution, but so do crimes motivated by absolute wanton disregard for life of any kind." No matter against whom.

Leahy's bill, like the counterpart "hate crimes" measure of House Judiciary Chairman John Conyers, D-Mich., that passed in the House this past April, violates the 14th Amendment's equal protection under the laws for individual Americans by setting up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes perceived to be based on gender identity, sexual orientation or disability, among other biases. Those who attack the elderly, police or those of the poor who are not among the "protected classes" would not get lengthier "hate" sentences than the law provides for the ACT itself. Doesn't this make lesser citizens of their victims?

Very late into the night on July 12, Democratic Senate leader Harry Reid slipped the Leahy "hate crimes" bill, as an amendment, into the $680 billion Defense Authorization Act. Leahy agreed with this avoidance of a full-scale floor debate. The amendment was approved by voice vote, following a 63-28 procedural vote that broke a Republican filibuster. All the 28 negatives were by Republicans. Harry Reid declared the vote "a victory for all Americans."

For some Americans more than others.

An editorial in the daily Free Lance-Star (Fredericksburg, Va.) in May warned: "Hate-crimes bill is an assault on the Constitution." (Full disclosure: The editorial mentions content I wrote for the Cato Institute.) Unique among daily newspapers, this paper occasionally runs educational articles on the Constitution, very much including the Bill of Rights. I wrote one for it on the First Amendment. Too bad other papers don't tell Americans who they are.

Trying to avoid criticism of the impending law by First Amendment protectors, Sen. Sam Brownback, R-Kan., had submitted an amendment to the Leahy measure that passed and says this law will not infringe on freedom of speech "if such exercise of religion, speech, expression or association was not intended to plan or prepare for an act of physical violence; or incite an imminent act of physical violence against another."

However, the bill still punishes a PERCEIVED hate crime.

That's the kind of broad language James Madison did not intend to encumber the First Amendment with when he wrote it. The ACLU now insists the Senate bill include what it calls the stronger protection of free-speech rights in the House bill. But the White House Web site points out that the House bill cites a hate crime is based on actual or PERCEIVED hate against a victim. Both bills include constitutional violations of double-jeopardy prosecutions by making it easier for the federal government to prosecute a defendant in a hate-crime case when the state says it cannot convict or chooses not to prosecute.

There were minor differences between the Senate and House "hate-crimes bills," requiring a Senate-House conference to resolve them. As I write this column, the conference hasn't happened yet, but I expect to see President Obama, a former professor of constitutional law, to delightedly sign it.

Almost as alarming as this invitation to state and then federal prosecutors to pursue "thought crimes" is a statement made by Leahy advancing the bill before the Senate Judiciary Committee, which he chairs. The list of supporters he cited is too long for inclusion here, but among them are: "26 state attorneys general ... the Federal Law Enforcement Association; the International Association of Chiefs of Police; the Hispanic National Law Enforcement Association ... The National Asian Peace Officers Association; National Black Police Association, National Center for Women in Police ... 26 state attorneys general ... National District Attorneys Associations...and 44 women's organizations."

I have often reported on other such constitutionally disadvantaged groups: school boards, heads of school systems, principals and teachers who fail - while assiduously teaching to tests in reading and math under No Child Left Behind - to inform students of the roots of their individual liberties in the Bill of Rights. Absent from most classes are the dramatic stories of the long, tumultuous history of what it's taken to keep the First Amendment, due process, the right to privacy and the rest of the Constitution alive.

How many Americans of all ages know of James Madison writing to Thomas Jefferson: We have "extinguished forever the ambitious hope of making laws for the human mind." But here we now have added federalization of one way not even Bush and Cheney ever thought of to undermine the 14th Amendment's "equal protection of the laws" for individuals, not protected classes.