ASHCROFT'S AGENDA UNDERMINES STATES' RIGHTS, CIVIL LIBERTIES

"The struggle to establish civil liberties against the backdrop of these
security threats, while difficult, promises to build bulwarks to help
guarantee that a nation fighting for its survival does not sacrifice those
national values that make the fight worthwhile."

-William J. Brennan, Speech delivered to Law School of Hebrew University,
Jerusalem, Israel, December 22, 1987.

Just because Attorney General John Ashcroft's Justice Department and its
assorted enforcement agencies have been unable to locate the source of the
anthrax does not mean they haven't been busy. During October Mr. Ashcroft
took steps to remind the country of the agenda that is closest to his heart
(after figuring out who the terrorists are and where the anthrax came from).

In California drug enforcement personnel began an all-out assault on
marijuana being distributed to seriously ill people to ease their suffering.

DEA Agents (who work for the attorney general) uprooted a marijuana garden
grown by patients, seized the files of a doctor and lawyer who recommended
the drug for thousands of sick people and spent six hours in a raid on the
Los Angeles Cannabis Resource Center. There was more to the raids than
simply relieving ill patients of a drug that was relieving their suffering.

Susan Dryden, a spokeswoman for the Justice Department, explained: "The
recent enforcement is indicative that we have not lost our priorities in
other areas since September 11." That was not the only evidence of
priorities recalled, especially those that affect the dying in whom Mr.
Ashcroft seems to have a peculiar interest.

During the first week in November Mr. Ashcroft issued an opinion that
authorizes federal drug agents (when they are not tearing up gardens in Los
Angeles) to identify and punish doctors who prescribe federally controlled
drugs to help terminally ill patients die. In his memorandum to Asa
Hutchinson, the DEA chief, he said assisting in a suicide is not a
"legitimate medical purpose" under federal law.

That opinion effectively bars Oregon physicians from legally prescribing
narcotics to help patients commit suicide, something that is permitted
under the state's Death With Dignity Act.

Oregon voters approved the Act in both 1994 and 1997 but Mr. Ashcroft
assumes that they did not know what they were doing, and, if they did, he
as attorney general knows better. Those acts were not enough to satisfy Mr.
Ashcroft's craving for conservative credentials.

At the end of October the anti-terrorism bill he enthusiastically supported
was passed. It contains provisions that combat terrorism while
simultaneously combating civil liberties. The Act has been baptized the
U.S.A. Patriot Act. It empowers the government to shift the primary mission
of the FBI from solving crimes to gathering domestic intelligence.

Intelligence gathering by the FBI was one of the first victims of the
post-Watergate era. At the conclusion of the 1975 Senate investigation into
abuses of domestic intelligence-gathering against political activists, Sen
Frank Church said domestic intelligence-gathering was a "new form of
governmental power" that was not constrained by law.

One of the resulting reforms was the segregation within the FBI of the
bureau's criminal investigation function and its intelligence-gathering
against foreign spies and international terrorists.

The Foreign Intelligence Surveillance Act of 1978 (FISA) permits the FBI to
carry out wiretaps and searches that would be unconstitutional if they were
designed to obtain evidence but are permitted if designed to gather
intelligence.

In order to guard against abuse, the attorney general was required to
certify to a court that the "primary purpose" of a proposed wiretap was to
listen in on a specific foreign spy or terrorist. The new law simply
requires a showing that "a significant purpose" of the tap is to listen in
on a specific foreign spy or terrorist.

Commenting on the bill, Senator Patrick Leahy, said: "The bill enters new
and uncharted territory by breaking down traditional barriers between law
enforcement and foreign intelligence."

The law also permits the FBI to give grand jury information to the CIA
without a court order, a dramatic change from the former rule that said
prosecutors could only share federal grand jury evidence with other federal
agencies if they had a court order.

Ashcroft cut short his testimony before the Judiciary Committee in support
of the bill and then declined to attend two additional Senate hearings for
closer questioning. He was probably busy with the marijuana and Oregon
matters. Those were not the only matters he might have been busy with.

During the first week in November he decided that it was OK for folks in
the Justice Department to listen in on phone conversations that lawyers
have with clients in federal custody and to intercept mail between lawyers
and clients in custody even though those communications are confidential.

That rule applies to people in custody regardless of whether or not they
have been charged with a crime. Some people might consider that the
equivalent of denying persons in custody of the right to counsel. Not to worry.

The attorney general will violate the right of an individual to be
represented by counsel only if he thinks "that reasonable suspicion exists
to believe that an inmate may use communications with attorneys or their
agents to facilitate acts of terrorism."

The folks listening in will, according to the Justice Department, only
disclose what they hear to federal prosecutors or investigators if a
federal judge approves, unless the department thinks acting without
approval is necessary to thwart an imminent act of violence or terrorism.

It's been a busy time for Ashcroft. It's been an even busier few weeks for
states' rights and civil rights. States' rights know how busy it has been.
Civil rights may not yet be aware of how busy it has been for them. They'll
soon find out. So, unfortunately, will the rest of us.

(Christopher Brauchli is a lawyer in Boulder, Colo.)