Ashcroft: Straight Out of Kafka?
In an op-ed piece in today's New York Times, Washington Bends the Rules, James Bamford, author of a recent book on the National Security Agency, compares Ashcroft's recent actions to those of the government in Franz Kafka's The Trial.
"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."
Bamford points out that despite Ashcroft's increasingly "draconian dictates," it is not Congress that has come to our aid but the judiciary. He interprets the recent FISA court opinion taking the FBI to task for its mispresentations in 75 secret snoop applications as a sign that the court is more than a little concerned with Ashcroft's attempts to expand the Justice Department's powers.
"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."
Bamford's description of the secret court is a little eerie.
"Today, like a modern Star Chamber, the F.I.S.A. court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The 11 judges (increased from seven by the U.S.A. Patriot Act) hear only the government's side."
The FISA court has approved 10,000 interception requests in its twenty five year history. It has never turned one down. In the event it were to deny a request, there is a special FISA appeals court. It is the only appeals court in the country which has never heard a case. Its first case will be the Government's appeal of the recently released May 17 FISA Court order.
Bamford describes the FISA appeals court judges as "the Maytag repairmen of the federal judiciary." Government appeals from the FISA appeals court go directly to the U.S. Supreme Court--in closed session.
Bamford calls upon Congress to hold hearings, some of them open, on how to fix the system.
He compares the FISA Court's unprecedented public release of the May 17 opinion to Josef K. in Kafka's The Trial, when he was so tired of the fight he lost his will to resist. "The release of the May 17 opinion (by the court's new presiding judge) to the Senate Judiciary Committee, and the committee's release of it to the public, can reasonably be seen as cries for help."
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