Under the guise of freeing FBI agents from "bureaucratic" restrictions and structures which "had hindered them from doing their jobs effectively," Attorney General John Ashcroft announced, on May 30, a sweeping revision of the Attorney General's Guidelines governing FBI investigations. Those Guidelines were originally drafted in the mid-1970s, following revelations of widespread abuses by U.S. law enforcement agencies, and by civilian and military intelligence agencies, of the Constitutional rights of American citizens.

Step-by-step -- be it the revision of the Guidelines, the policy of dragnets, detentions, and secret hearings for foreign nationals, or the transfer of a U.S. citizen to military custody to circumvent the civilian courts -- such actions constitute a fundamental erosion of the civil and Constitutional rights of American citizens, as well as the destruction of principles of justice and fairness with respect to foreign nationals who are present in the United States.

These measures represent a "crossing of the Rubicon," toward a police-state dictatorship and further, in a number of instances, toward the elimination of the constitutional and legal distinction between the military and law enforcement, which is enshrined in the doctrine of posse comitatus.

Whether one takes a legion, or one soldier, across the Rubicon, or whether one just drifts across the Rubicon occasionally, one has breached the barrier. More important than the degree to which it has so far happened, is the precedent thus set, which opens the way to yet-undetermined amounts of intrusion under this policy. The idea that there can be justice without law, or law without justice, is intolerable to the entire American tradition. It is a subversion of everything on which this Nation is built.

The fundamental fallacy of the actions taken by Attorney General Ashcroft, and other officials under his direction, is the idea that somehow, the federal Constitution, and the rights and privileges granted thereunder, must yield during times of crisis or war.

Our Constitution -- born in the crucible of a conflict on American soil, the Revolutionary War -- was clearly designed for times of war as well as times of peace, and the notion that the laws must bend, that constitutional protections must be reduced, and that justice must be suspended, in times of conflict or crisis, is alien to the letter and spirit of our fundamental law.

To those who argue that this is a "new kind of war," which requires new kinds of legal and military strategies -- largely of the "preventive" nature -- we suggest that perhaps we shouldn’t be waging this "new kind of war."

"Preventive" action -- whether of those sort envisioned against so-called "rogue nations," or that which is supposed to define the new mission of the FBI, to prevent and disrupt, rather than to prosecute crimes -- tends toward the practice of shooting first, and asking questions later. The authorization of FBI infiltration of organizations, and of the surveillance and monitoring (and disruption) of individuals and organizations without any evidence that a crime is being planned or prepared, is of this character.

Where is the standard of truth? Can anyone be labelled a terrorist, or a potential terrorist to be investigated and subject to FBI disruption, without any evidence or proof? Can anyone -- even a U.S. citizen -- be labelled an "enemy combatant" and then detained indefinitely without charges and without access to a lawyer, or access to the courts, as the Justice Department has just recently argued in the Hamdi case?

If government agencies can prove that an individual has committed a crime or an offense against the United States, that is one thing. To lock someone up incommunicado and indefinitely, on the suspicion that he is a "bad guy," is another.

If the authorities have substantial evidence that an individual is in the process of planning or committing a crime, then it is clearly appropriate to take steps to prevent the commission of that crime. But there must be a reasonable standard of evidence, not simply a hunch or a suspicion -- particularly one based heavily on ethnicity, religion, or national origin.

Regarding the secret detentions of foreign nationals, it is critical to remember that we demand that foreign countries treat U.S. citizens with respect, and protect their rights according to certain standards of justice. Other countries have a right to expect the same from the United States. The United States has, and properly does, protest vigorously if a U.S. citizen is detained abroad and held incommunicado, without access to legal counsel and U.S. diplomatic representatives -- yet the United States has detained hundreds of foreign nationals under those conditions.  Nations have mutual obligations with respect to the treatment of each other's nationals, and if we start breaching that, we turn the whole planet into a lawless jungle.

Overall, the character of many of the actions taken, and practices adopted, since September 11, is that of ill-conceived measures which are the product of the heightened passions of the time, rather than reason. In the face of an hysterical reaction to what is presented as a threat of international terrorism, an ill-considered, irrational impulse has taken over, and has replaced the function of reason in the administration of justice. Among the great objects of our Federal Constitution -- as embodied in its Preamble -- are to "establish Justice, ensure domestic Tranquility, provide for the common defense," and to "promote the general welfare."  The idea that somehow that great document is not equal to the challenges of the present day, is an abomination which has no place in our government.

It is under conditions of crisis, that it is most important to respect the principles of our Constitution -- and not to scrap them, as some are inclined to do under the fears and passions of the moment.

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