ASHCROFT SHOWS HIS TRUE COLORS

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.

Mr. 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 Mr. 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.