Crossing the threshold: While we’re all fretting over the Patriot Act, John Ashcroft’s Justice Department is after much bigger game
BY HARVEY A. SILVERGLATE AND CARL TAKEI
"...the hue and cry raised over the Patriot Act has distracted most of us from the Bush administration’s far more dangerous assault on another class of liberties, which might be called "threshold rights." After all, the Patriot Act can be rolled back if the people decide that the government has overreached or the emergency has receded, and some provisions of the act have automatic expiration dates. But threshold rights — fair elections, open and publicly accountable government, judicial review of executive action, the right of the accused to a public jury trial, separation of powers among the three branches of government, and the rights to free expression and free association — are structural, and therefore changes to them are more enduring."
"...Attacks on threshold rights supposedly justified by the "war on terrorism" are particularly menacing because this war has no foreseeable end, and the dangers are indisputably real. Nor will the war be contained geographically; as Ashcroft warned the House Judiciary Committee in June 2003, he now considers the streets of the nation to be "a war zone." On Ashcroft’s domestic battlefield, threshold liberties are indeed under grave attack, and none with more alarming success, at least thus far, than the right to judicial oversight of the executive branch, specifically the writ of habeas corpus — the oldest and most fundamental right of free citizens in the Anglo-American legal tradition."