Rough Justice

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Many of the new rules could easily be applied to conduct surveillance on ordinary Americans. The act gives the government broad new power to conduct "sneak and peek" searches--to go into Americans' homes when they're out and look around without telling anyone. Such searches are far more intrusive than traditional "knock and announce" ones.

The Bush Administration's new rules will also have an impact in less expected areas--like access to government records. The Justice Department has raised the standard for getting material under Freedom of Information Act requests, a chief tool of watchdogs checking up on government. And federal agencies are pulling down information of all kinds from their websites. Preventing Web-surfing terrorists from learning the location of power plants and gas lines makes sense. But some of this data pullback could make it harder for ordinary folks to get information they need--like whether, say, a cancer-causing factory is located near a home they're thinking of buying.

If Ashcroft had taken the Bush Administration's more controversial initiatives to Capitol Hill, he might have avoided some of the backlash. But while Congress was passing the U.S.A. Patriot Act, the Attorney General was writing far-reaching rules of his own and issuing them through the Federal Register. "We felt that we had been asked for and had given the Administration the tools it needed to fight terrorism," says Illinois Democrat Dick Durbin. Its unhappiness at being kept in the dark is the reason the Senate Judiciary Committee called Ashcroft in this week to explain himself.

Setting up courts, for instance, is lawmaking--Congress's job, under the Constitution--says A.C.L.U. legal director Steve Shapiro. But instead of asking Congress to pass a law authorizing military tribunals, the President issued an order that "allows the President to circumvent the civil justice system by the stroke of a pen." When defendants in these tribunals challenge their convictions by habeas corpus--if they can--they are sure to argue that the military courts were not established constitutionally.

The Bush Administration has also, in at least one controversial case, attempted to push aside the judiciary. A Justice Department rule issued by Ashcroft in late October without public notice or debate says the INS can ignore an immigration judge's order to release an alien on bail while his deportation is being litigated. The order threatens to usher in Alice in Wonderland proceedings, in which the result is the same no matter which way the judge rules.

Emergencies do not last forever, and as the sense of crisis ebbs, the other branches of government will no doubt step in again, as they have done throughout history. After Congress has its say, the courts will have theirs. Civil-liberties groups like New York's Center for Constitutional Rights have begun talking with defense lawyers for some of the detainees, hoping to put together test cases that challenge military tribunals, secret detainments, attorney-client eavesdropping and other policies. The main delay is that the cases can't be brought until someone is subjected to these policies.

But the biggest factor of all--the one that has throughout American history held authoritarianism at bay--is popular opinion. In the post-World War I Palmer Raids, 6,000 people were rounded up after a series of bombings by suspected anarchists, one of which destroyed Attorney General A. Mitchell Palmer's home. As the threat of violence abated, popular opinion turned against the raids and in favor of greater political freedoms.