The Magazine

That Devil Ashcroft

From the March 3, 2002 issue: John Ashcroft: civil-liberties menace?

Mar 3, 2003, Vol. 8, No. 24 • By DAVID TELL, FOR THE EDITORS
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Professor O'Reilly, of course, holds the Factor Chair in constitutional law at Fox News Channel University, where he propounds a famously illiberal jurisprudence; "I'm not the ACLU poster boy," as he puts it. But he has "read over this Domestic Security Enhancement Act" business, and it's all of a sudden got him ACLU-poster-boy-quality mad. This thing's "not going to fly with me," O'Reilly lectures. "Ashcroft is throwing sheets over statues. Come awwn." The Factor seems particularly exercised about the might-be proposal's would-be amendment to one such statute in particular: Title 42, Section 14132 of the U.S. Code, which currently delimits the FBI's authority to collect and maintain DNA identification records for past federal offenders. According to Charles Lewis's purloined document--according to Bill O'Reilly--the Ashcroft crowd now wants to rewrite this provision so that any old "cop" can "go up to you and me--no reason, all right?--and say, 'Hey, give me that DNA sample'. . . . I can be, and you can be pulled over, and anybody watching could be pulled over. And a cop could take you right out of the car and say, 'Hey, give me your fingerprints right now.'"

O'Reilly is hardly the only person who pretends to have "read over" the legislative language at issue and found in it a chromosomes-on-demand, everyone's-cellcode-in-the-computer nightmare like this. Similarly dystopian accounts of a "secret" Justice plan for double-helix surveillance--"secret," truth be told, only in the sense that this magazine's next issue will be a "secret" until we've finished writing it--are also on offer from, yes, the ACLU. And from Charles Lewis and columnist William Safire, too. And from more unsigned newspaper editorials, for that matter, than any one man could hope to read in a month. Each of these accounts is fabricated, however.

Just for starters, federal law cannot authorize non-federal, local "cops" to do anything at all, and not a word in the "Domestic Security Enhancement Act" draft suggests otherwise. More to the point, by its own plain terms, the document contemplates expanded DNA collection authority for federal officials only and specifically with respect to "enemy combatants" so designated by the president personally, prisoners of war, battlefield detainees, and people arrested as "suspected terrorists." This last is no vague, catchall phrase, incidentally. It is a term of art explicitly defined by law--such that its application must always rest on an individualized showing of suspicion, the persuasiveness of which may always be challenged in the courts.

Nobody is planning to pull "you" from your car and demand "you" turn over a pair of your genes.

Nobody is planning, as Charles Lewis somehow convinced Bill Moyers during an interview on PBS, to "strip [your] citizenship" just because "you were found making what you thought was a legitimate contribution to some non-profit organization and months from then, that . . . organization were deemed by the government to have been in some way supporting terrorists...even if you didn't know." Yes, "that's right," Lewis replied. Except that no, it's not. Here again, by its own plain terms (and in this case, consistent with governing Supreme Court precedent), the "secret" Justice plan would fully embrace the classic mens rea standards of criminal law: The government would first have to prove that "you" had knowingly and intentionally provided material support to a terrorist group known to be engaged in ongoing hostilities against the United States--essentially, that you were guilty of treason. Then and only then would the Justice Department possess discretionary latitude, through the vehicle of a regular expatriation proceeding in a regular court subject to regular constitutional strictures, to question your continued entitlement to citizenship.

ACLU legislative counsel Tim Edgar says the "Domestic Security Enhancement Act" would mean that "an activist who is simply gathering information on human rights violations could be wiretapped on the theory that they are gathering information for a foreign intelligence power, without any indication that they are violating the law or that their activities present a threat to national security." Mr. Edgar is wrong about that; the relevant provisions of the bill contain a mens rea requirement.

And so on.