Washington Bends the Rules
S omeone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested." So begins "The Trial," Franz Kafka's story of an ordinary man caught in a legal web where the more he struggles to find out what he did wrong, the more trapped he becomes. "After all," says Kafka's narrator, "K. lived in a state governed by law, there was universal peace, all statutes were in force."

With increasing speed, the Justice Department of Attorney General John Ashcroft is starting to resemble the "always vengeful bureaucracy" that crushed Josef K. Recently, in two federal cases, the Justice Department argued that it is within the president's inherent power to indefinitely detain, without any charges, any person, including any United States citizen, whom the president (through the Justice Department) designates an "enemy combatant." Further, the person can be locked away, held incommunicado and denied counsel. Finally, Mr. Ashcroft argues that such a decision is not subject to review by federal or state courts. This situation is beyond even Kafka, who in his parable of punishment and paranoia at least supplied Josef K. with an attorney.

Despite the draconian dictates issuing almost daily from the Justice Department, it is not the watchdogs in Congress but the judiciary itself that is blowing the whistle. The most recent example came from the super-secret Foreign Intelligence Surveillance Court in the form of an extremely unusual open opinion — only the second in its quarter-century history. The judges of the court unanimously criticized federal agents for misleading the court in applications for secret eavesdropping warrants on 75 occasions during the Clinton administration (as of September 2000) and an unspecified additional number between September 2000 and March 2001. One request was even signed by F.B.I. director Louis J. Freeh.

The F.I.S.C. presiding judge from that period, Royce Lamberth, said in April of this year that Mr. Ashcroft's Justice Department had cleared up some problems associated with approval of wiretaps — the court's main activity. However, Mr. Ashcroft's steady push to increase his department's surveillance powers and subject citizens to investigative methods normally restricted to the tracking of spies has forced the court to publicize its worries. The F.I.S.C. opinion was issued on May 17. It found that the Justice Department wanted to use the U.S.A. Patriot Act improperly. The court's decision is now being appealed by Mr. Ashcroft to the F.I.S.C. appeals court. The May 17 opinion was sent by the F.I.S.C. court to the Senate Judiciary Committee, which released it to the public last Thursday. The committee, like F.I.S.C. itself, has grown concerned by the Justice Department's ever more extensive power.

It is time for Congress to at last hold public hearings on the issue. The problems have become so bad that the court barred one F.B.I. agent — the supervisor in charge of surveillance involving Hamas, no less — from appearing before them again.

What triggered the court's extraordinary public rebuke was Mr. Ashcroft's proposal last March to greatly increase the amount of intelligence information shared between the spies and the cops. Many fear that erasing the line between the two groups will open up, in particular, a Pandora's box of domestic electronic espionage by the F.B.I. and the National Security Agency.
http://www.nytimes.com/2002/08/27/opinion/27BAMF.html