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Eight Amendments, but Only the Second Seems Safe


11 December 2001

Start at the beginning.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

So far, so good, on the right to peaceably assemble. The rest of the freedoms grow envious.

The government is considering relaxing generation-old prohibitions that keep the FBI and CIA from spying on religious organizations. Current rules, a legacy of J. Edgar Hoover's excess, allow such pursuit only if the government has some evidence a member of a religious group might have broken the law. This is not enough now, we are told. No explanation is offered.

Attorney General John Ashcroft, sharing his views on the freedom of speech, says those who raise questions about his unusual law enforcement tactics - that is, members of Congress, former FBI brass, right- and left-leaning interest groups - give "ammunition to America's enemies." Dissent is officially unpatriotic.

Freedom of the press strains under wartime restrictions. Pentagon pool reporters in Afghanistan are more tightly controlled than have been reporters in any contemporary conflict, including World War II. They were banned from photographing or reporting on casualties, even as the wounded were brought to base a few feet from journalists' view. The Justice Department ignores Freedom of Information Act requests concerning hundreds of people of Mideastern origin who have been detained since the Sept. 11 attacks. Those seeking public information about the detainees' names, when they were arrested and for what, were forced to sue.

On to Amendment Two.

"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Ashcroft is of the school that finds no meaning in the phrase "a well-regulated Militia." He deprives hundreds of detainees of their liberty. But he will not deprive them of their guns. The attorney general refuses his own agents' request to use federal gun-purchase records to see if any detainees have bought firearms. Illegal immigrants and those here on non-immigrant visas - students, tourists, temporary workers - are banned from owning guns under federal law. As it happens, these are the same sort Ashcroft has in his custody. He pursues them for working at shopping-mall kiosks, but not for the possibility they hold a weapons cache.

No one as yet has been asked to quarter a soldier, prohibited under the Third Amendment. So now we go deep into the soul of the Bill of Rights.

These are the amendments - four through eight - that set the U.S. system of justice apart from all others. They guard against unreasonable searches and seizures. They guarantee an ill-defined and indispensable "due process of law." They demand "a speedy and public trial, by an impartial jury" - and allow the accused to see the evidence. "The right of a trial by jury shall be preserved," the Seventh Amendment says, even in a civil suit worth $20. "Excessive bail shall not be required," commands the Eighth.

The Justice Department says it will listen in on conversations between lawyers and their alleged terrorist clients, a search it does not consider unreasonable. It has detained hundreds and questioned thousands. Many have not been "informed of the nature and cause of the accusation," as the Sixth Amendment puts it. Some have been cleared for release by immigration judges, only to have the Justice Department block it. You could not really say bail is excessive. It is not contemplated.

President George W. Bush ordered that he, himself, can declare he has "reason to believe" any one of the 20 million non-citizens living in the United States is a terrorist - or a supporter - and so try that person at a military tribunal. The "impartial jury" would be a panel of military officials. The evidence might not be shown. There would be no appeal, even if the sentence were death.

The Bush administration insists it will take better care of constitutional principle when the Pentagon comes up with specific rules for the tribunals. This tardiness, though, has been useful.

It allowed us to comprehend where our leaders stand on that ancient document that sets forth what we stand for. They believe the Second Amendment is first, among unequals.

Marie Cocco.
Published in Newsday (Long Island, New York).
2001, Newsday, Inc.



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