BostonPhoenix: Crossing the threshold: While we’re all fretting over the Patriot Act, John Ashcroft’s Justice Department is after much bigger game

"Threshold rights enable civil society to know what government is doing and to rein in abuses. Think of it this way: temporary restrictions on some forms of privacy enable the government to know what you are doing, which is troubling enough. Threshold rights enable you to know what the government is doing, and that’s why they form the core of democratic society. The degree to which a society protects threshold rights speaks to whether it is free and open, and whether self-correction can occur without violence. If the press is free, the electorate has open elections, and the courts are performing their sworn duty, even a president who tries to assume the powers of an emperor can be dealt with.
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.
THE WRIT OF habeas corpus (Latin for "you have the body") compels the executive branch to produce a prisoner and disclose the legal basis for his or her detention, so the court may decide whether that detention is constitutional. This procedure, which stems from the English Magna Carta of 1215, lies at the very heart of constitutional government, consisting of separated powers guided by the rule of law. Without habeas corpus, there is nothing to prevent the executive from locking a person up without charge or lawful justification, never to be heard from again. Known appropriately in English history as the "Great Writ," habeas corpus is the brilliant light that protects Americans from the gulag. In a world where many governments have the power "to lock them up and throw away the key," habeas requires the judiciary to keep a spare key. In fact, the check habeas provides on executive detention powers doesn’t stop with the courts: the US Constitution grants power to suspend the writ only to Congress, and even then only in the event of "rebellion or invasion."
The government’s assault on habeas corpus began six days after September 11, when Attorney General Ashcroft circulated draft legislation — what would soon become the Patriot Act — that included provisions for suspending the writ. As reported in Steven Brill’s book After: How America Confronted the September 12 Era, Republican Wisconsin representative James Sensenbrenner, chair of the House Judiciary +, made it clear to the attorney general that habeas suspension was a "nonstarter" and that he wanted it out of the bill. The provision quietly evaporated from subsequent drafts, but Ashcroft has since pursued alternate means of circumventing habeas protections.
Some of the most fundamental changes are gaining ground through a strategy best described this way: start with the right test cases, keep the judiciary from interceding, and keep the press from learning too much by, for example, refusing to release the names of foreign prisoners and keeping case dockets under seal. If these changes remain below the radar of Congress and the people, and if they are left unchecked by our courts, it will be exceedingly difficult for fundamental liberty to recover even when the current crisis has passed.
Once threshold rights are stripped away, the only thing that stands between any of us and arbitrary imprisonment is the good will of the president, the attorney general, and the secretary of defense. Even if one trusts the judgment of the current occupants of these offices, to leave such power in their hands (and those of their successors) would violate the clear intent of the drafters of the Constitution. As Supreme Court justice Felix Frankfurter once wrote: "The historic phrase ‘a government of laws and not of men’ epitomized the distinguishing character of our political society.... [F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power, however disguised." "