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Wednesday, Feb. 18, 2004
John Ashcroft's Subpoena Blitz:
Targeting lawyers, universities, peaceful demonstrators,
hospitals, and patients, all with no connection to terrorism
By Noah Leavitt
Over the past two weeks, the Justice Department has issued two intensely controversial sets of subpoenas. The first targeted peaceful demonstrators in Iowa. The second targeted medical caregivers in Illinois, New York, Pennsylvania and Michigan.
None of the targets of these subpoenas is alleged to have anything to do with terrorism.
The Iowa Subpoenas: Information Related to An Anti-War Demonstration
The Ashcroft Justice Department has had its eye on peaceful demonstrators and dissenters for quite some time. In May 2002, for instance, the Attorney General announced the elimination of twenty-six-year-old regulations that had prevented the FBI from monitoring "open to the public" events held by domestic religious, political and civic organizations unless it had specific cause for doing so.
These regulations had been specifically developed to counter the COINTELPRO domestic spying program that had led to massive civil rights era abuses during the 1960s and 70s. Now, these restrictions no longer exist -- and such abuses may well be repeating themselves.
Indeed, in a November 23, 2003 article, the New York Times detailed how -- according to a leaked bureau memorandum -- the FBI was collecting extensive information about, and tracking, antiwar demonstrators. According to the Times, the memo "possessed no information that violent or terrorist activities are being planned" as a part of major protests. Still, even with no evidence of a link to terrorism, the surveillance continued -- and likely continues to this day.
Then, on February 3 of this year, a local county deputy sheriff working with the FBI Joint Terrorism Task Force served subpoenas ordering Drake University in Des Moines, Iowa, to turn over documents relating to a November 2003 anti-war conference.
The main theme of the conference had been to bring the Iowa National Guard safely back from Iraq. Attendees included the director of the local Catholic peace organization. The conference was followed the next day by a peaceful demonstration at the Guard's training center.
The subpoena asked for all records of Drake University campus security officers reflecting any observations made of the conference, including any records relating to the people in charge, or to any of the attendees. In addition, the subpoenas sought information about the local chapter of the left-wing National Lawyers Guild, which had helped to organize the conference.
The New York, Chicago, Philadelphia and Michigan Medical Subpoenas
Those subpoenas were directed to at least six major hospitals in New York City, Chicago, Philadelphia, and Ann Arbor. They demanded that the hospitals turn over hundreds of medical records -- relating to what may be dozens of patients who underwent certain types of abortions performed in these facilities over the past three years.
Plainly, these subpoenas sought private, sensitive medical information. They also attempted to second-guess doctors' judgment, and intrude into the confidential relationship between doctor and patient.
Why were they issued? The Attorney General claims these records are needed to defend litigation challenging the recently passed Partial Birth Abortion Ban Act (PBABA). Apparently, the Justice Department wants to show, specifically, that procedures doctors deemed medically necessary, actually were not.
Sacrificing Liberties Without Any Plausible Security Concern
Since 9/11, we have heard repeatedly, from the Bush Administration and others, that we must sacrifice some of our civil liberties in order to increase security, and protect our country against terrorism. This argument has provided support for a variety of measures, including the USA PATRIOT Act. And studies have shown that the majority of Americans have accepted this argument: They are willing to give up some degree of privacy and freedom if it is necessary to prevent further terrorist attacks.
But now, the Justice Department has made clear that it views its powers as much greater than this. It won't just use its new powers to curtail privacy and liberty when terrorism is suspected -- it will do so whenever its political agenda makes it advantageous to do so.
The Administration has also insisted that peace-loving Americans who are innocent of any wrongdoing have nothing to fear from these new laws and regulations. But now, the Attorney General has sought information about innocent persons -- who did nothing more than exercise their First Amendment rights, or their right to obtain a legal abortion.
The message could not be more clear: The government is not going to stop at only investigating people connected to terrorism; it is willing to look at the most personal aspects of anyone's life. And the guiding principle won't be security; it will be politics.
An Ever-Expanding Assault on Americans' Rights and Freedoms
The past two weeks will likely be recorded in history books as the moment when President Bush's homeland security regime crossed the line, and significantly intruded upon the lives of law-abiding, innocent Americans.
It may also come to be known as the moment when people living in the U.S. suddenly realized the extensive powers that the government can exercise against anyone, regardless of any connection to national security -- especially now, with the advent of the USA PATRIOT Act.
In his recent book, Enemy Aliens (reviewed on this site by Elaine Cassel), Georgetown Law Professor David Cole describes how, over U.S. history, violations of U.S. citizens' rights have often been foreshadowed by violations of the rights of non-citizens. Indeed, according to Cole, the expansion of rights-violations from non-citizens to citizens has been "virtually inevitable."
Cole worries that we may be in another such cycle now, which began with the restrictions of the rights of Arab-Americans and Muslims after September 11 and may be spreading to wider sectors of American society. And the recent subpoenas against peaceful demonstrators and medical providers seem to be playing out Cole's fears.
The federal government has repeatedly promised -- and Americans have generally believed -- that the government would violate civil liberties only if necessary to pursue Al Qaeda and other terrorist threats. But the events of the past two weeks have proven that that simply isn't true.
It's not accused Al Qaeda cell members who are the targets here. Instead, the targets are universities, peaceful protesters, civil rights attorneys, hospitals, and patients. It is no overstatement, now, to say to all Americans: Tomorrow, it could be you -- your medical records; your civic organization meeting; your protest rally. The time to protest is now -- before it's too late.
Noah Leavitt, an attorney and author, is the Advocacy Director of the Jewish Council on Urban Affairs. The views expressed here do not necessarily represent those of his organization. He can be contacted at nsleavitt@hotmail.com
http://writ.news.findlaw.com/commentary/20040218_leavitt.html
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