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News not "fit to print"

By Steve Lilienthal
web posted May 31, 2004

If, and when, freedom dies in America, it will not be a sudden departure.

No. It will come about gradually, with little attention devoted to the key events as they occurred. Then, many Americans will wake up shocked and stunned, having lost the very freedom and liberty that they had taken for granted. Do not be surprised if even prominent members of the news media, supposedly people in the know, find themselves taken aback too.

The demise of liberty will come bit-by-bit...new regulation by new regulation, new exception by new exception to the Bill of Rights, new law by new law. Freedom will be sliced and diced in congressional committee hearings and by legislative maneuvering ignored by the mainstream news media.

That became clear earlier this month when the Crime Subcommittee of the House Judiciary Committee held a hearing on H.R. 3179 -- the Anti-Terrorism Intelligence Tools Improvement Act of 2003.

The trade press wrote stories about the hearing, but The Washington Post and The New York Times did not write one story in advance of the hearing or immediately after it. Advocates of constitutional liberties expressed a great deal of concern about the so-called PATRIOT II legislation last year, but this effort to expand the scope of the PATRIOT Act has largely escaped the notice of two of the most prominent newspapers that cover Capitol Hill.

The fact that H.R. 3179 had initially been slated for mark up without having received any scrutiny from the House Judiciary Committee should have been news in itself. The fact that Rep. James Sensenbrenner, Chairman of the House Judiciary Committee, decided otherwise, made for an even better story. The fact that advocates of constitutional liberties on both the right and left called for a hearing should have provided a good news hook. Apparently it was not enough to have stories published in two of the most prominent national newspapers that cover Capitol Hill.

Unfortunately, the hearing was suspended due to roll call votes on the House floor.

Former congressman Bob Barr, representing the American Conservative Union, delivered an extensive prepared statement and spoke eloquently for those Americans who believe that Federal law enforcement should have the tools to fight terrorism. He also noted that oversight and accountability should come with the enhanced power to ensure that power is used responsibly.

Barr's prepared statement said: "Despite the broad concerns expressed by many grassroots conservative organizations, such as the American Conservative Union, Free Congress Foundation, and Eagle Forum -- with whom I continue to work closely -- the Administration has pressed on with a ill-considered proposal to prematurely make permanent all of the USA PATRIOT Act...Making those powers permanent now would take away any leverage Congress now has to secure cooperation from the Justice Department in its oversight efforts."

He also asserted that the House Judiciary Committee had not yet held its planned hearings to examine the implementation of the USA PATRIOT Act. The Attorney General, he added, had admitted that some of the powers were not even being used. "If so," asked Barr, "are such powers really needed? These are just a few of the questions that the Justice Department has not adequately answered...these questions should be examined before the Committee considers new legislation."

One troubling concern of this proposed legislation is the gag orders imposed on recipients of "National Security Letters." The recipients could be librarians, credit card companies, car dealerships, etc. Though the Department of Justice claims that the NSL statute allows a recipient to contact an attorney, who would also be subject to the gag order, the fact is, it needs to be clearly codified. The loose language in the NSL provision of H.R. 3179 should make Americans wary of the DOJ's assurance of "trust us." There should also be a codified right for a recipient to contact the Department of Justice's Inspector General or the congressional committees conducting oversight.

Admittedly, few American citizens, at least for the present time, can expect themselves to run afoul of the Foreign Intelligence Surveillance Act of 1978, which establishes a legal standard for "foreign intelligence" surveillance as opposed to ordinary law enforcement surveillance. However, Barr addressed that point when he made clear that the Fourth Amendment read "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated." America's Founding Fathers, he noted, purposely meant this right for all people. He explained that some rights in the Constitution only apply to American citizens, but the right of due process under law and the right to be free of searches not based on probable cause were meant for anyone and everyone on American soil. Constitutional liberties activist Janine Hansen, someone who favors much stricter controls on immigration but recognizes fundamental rights, has said: "If they (i.e., law enforcement) can do it to them, then they can do it to us."

Conservatives, by principle, seek to preserve our nation's freedom and liberty, realizing that they are a most valuable part of our heritage and that their continued existence depends on our willingness to defend against incursions by either a foreign power or of an overly centralized government. The news media may have decided that their presence at the hearing was not necessary. Maybe they could cover the legislation later on, even though the measures being considered stand to set precedents for the Federal Government's bureaucrats to whittle away fundamental rights.

The news media's negligence had the effect of frustrating the start of a much-needed public debate over whether the PATRIOT Act needs to be made permanent or expanded. Congress certainly needs to take the time to thoroughly scrutinized whether the existing powers are being used properly and whether they are truly necessary.

Now that debate over H.R. 3179 may be further short-circuited by skillful legislative maneuvering. Jennifer Dlouhy reported in Congressional Quarterly's CQ Today that the bill might have its provisions slipped into the fiscal 2005 Intelligence Authorization legislation. Barr warned in the article, "If they slip it into an intelligence bill, you'd see it at the last minute...[o]nly a handful of [members] would be willing to vote against an intelligence bill."

The lesson of the hearing on H.R. 3179 is clear: Americans who care about their constitutional liberties cannot depend on the major media sources to dependably inform citizens about dangers to our constitutional liberties. This acknowledgement is not defeatist. Since when have conservatives been dependent on The Washington Post or The New York Times to set our agenda? Fortunately, we are now less dependent than ever on what they choose to report. The growth of the alternative news media and e-advocacy enable conservatives to be "in the know" more than ever before and able to mobilize quickly to defend our constitutional liberties.

The problem is: What about the rest of America? The answer is that we cannot depend on the establishment news media, much less those who depend on it for their information to take action. It's up to us to take action through our calls and letters to Congress, radio talk shows, and newspapers. We should do so mindful that there is no greater bequest we can leave future generations of Americans than freedom and liberty.

Steve Lilienthal is the Director of the Center for Privacy & Technology Policy at the Free Congress Foundation.

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