John Ashcroft's Subpoena Blitz:
Targeting Lawyers, Universities, Peaceful Demonstrators, Hospitals, and Patients, All With No Connection to Terrorism

Wednesday, Feb. 18, 2004

Over the past two weeks, the Justice Department has issued two intensely controversial sets of subpoenas. The first targeted peaceful demonstrators in Iowa. The second targeted medical caregivers in Illinois, New York, Pennsylvania and Michigan.

None of the targets of these subpoenas is alleged to have anything to do with terrorism.

The Iowa Subpoenas: Information Related to An Anti-War Demonstration

The Ashcroft Justice Department has had its eye on peaceful demonstrators and dissenters for quite some time. In May 2002, for instance, the Attorney General announced the elimination of twenty-six-year-old regulations that had prevented the FBI from monitoring "open to the public" events held by domestic religious, political and civic organizations unless it had specific cause for doing so.

These regulations had been specifically developed to counter the COINTELPRO domestic spying program that had led to massive civil rights era abuses during the 1960s and 70s. Now, these restrictions no longer exist -- and such abuses may well be repeating themselves.

Indeed, in a November 23, 2003 article, the New York Times detailed how -- according to a leaked bureau memorandum -- the FBI was collecting extensive information about, and tracking, antiwar demonstrators. According to the Times, the memo "possessed no information that violent or terrorist activities are being planned" as a part of major protests. Still, even with no evidence of a link to terrorism, the surveillance continued -- and likely continues to this day.

Then, on February 3 of this year, a local county deputy sheriff working with the FBI Joint Terrorism Task Force served subpoenas ordering Drake University in Des Moines, Iowa, to turn over documents relating to a November 2003 anti-war conference.

The main theme of the conference had been to bring the Iowa National Guard safely back from Iraq. Attendees included the director of the local Catholic peace organization. The conference was followed the next day by a peaceful demonstration at the Guard's training center.

The subpoena asked for all records of Drake University campus security officers reflecting any observations made of the conference, including any records relating to the people in charge, or to any of the attendees. In addition, the subpoenas sought information about the local chapter of the left-wing National Lawyers Guild, which had helped to organize the conference.

This step, too, was ominous. In the 1950s and 60s, similar types of "fishing expedition" subpoenas, as well as the threat of grand juries, were often used to harass political dissenters and their lawyers, as well as to threaten people with jail terms or other penalties if they did not act as an informer on their colleagues. Iowa Sen. Tom Harkin commented about the Drake situation, "I don't like the smell of it…It reminds me too much of Vietnam when war protestors were rounded up, when grand juries were convened to investigate people who were protesting the war."

(Moreover, under the USA PATRIOT Act, grand jury testimony, which is supposedly secret, can now be shared with the CIA, the FBI and various other law enforcement agencies whenever the government claims a possible connection to an anti-terrorism investigation.)

Despite the lack of any terrorism connection, the government put a gag order on the Drake staff before the subpoenas were withdrawn, which seems to confirm that the government plans to conduct its surveillance under cover of darkness. This is consistent with the USA PATRIOT Act, which lowered standards for government surveillance, and created a crime of "domestic terrorism," which many fear will be used to target organizations that criticize federal policies.

Sadly, this is hardly the first time such legislation has been misused. For instance, a September 27 New York Times article, which was based on a DOJ report, detailed literally hundreds of non-terrorism cases for which the USA PATRIOT Act had been used to prosecute drug cases, murder investigations, money smuggling/laundering and document forgery.

When the Iowa subpoenas became public, stunned public interest law firms said that, to their knowledge, they were the first of their kind issued against a university in decades. A furious outcry from civil libertarians, politicians and grassroots activists ensued.

In the end, the subpoenas were withdrawn, and the U.S. Attorney for the Southern District of Iowa replaced them with a much more narrowly tailored request. For a moment, it seemed like the government had admitted that it had overstepped its boundaries -- but then, just a few days later, another set of equally abusive subpoenas was issued.

The New York, Chicago, Philadelphia and Michigan Medical Subpoenas

Those subpoenas were directed to at least six major hospitals in New York City, Chicago, Philadelphia, and Ann Arbor. They demanded that the hospitals turn over hundreds of medical records -- relating to what may be dozens of patients who underwent certain types of abortions performed in these facilities over the past three years.

Plainly, these subpoenas sought private, sensitive medical information. They also attempted to second-guess doctors' judgment, and intrude into the confidential relationship between doctor and patient.

Why were they issued? The Attorney General claims these records are needed to defend litigation challenging the recently passed Partial Birth Abortion Ban Act (PBABA). Apparently, the Justice Department wants to show, specifically, that procedures doctors deemed medically necessary, actually were not.

But in fact, this kind of evidence ought to be utterly irrelevant to the litigation. The relevant evidence is the evidence that was before Congress when it passed the PBABA -- not subsequent evidence the Justice Department might later be able to dig up by violating patient privacy.

And in any event, the PBABA's central problems are constitutional -- not evidentiary. By its plain language, the law conflicts directly with the recent Supreme Court precedent of Stenberg v. Carhart -- which mandated the very "health of the mother" exception that the PBABA omits.

The subpoenas have met with a mixed reaction in the federal courts. On one hand, a federal judge in Manhattan allowed the subpoenas to go forward, and said that he would impose penalties -- and even sanction the attorneys -- if the medical records were not provided.

On the other hand, however, during the same week, the chief federal judge in Chicago threw out the subpoena against the Northwestern University Medical Center because he found that it was a significant intrusion on patients' personal privacy. The Justice Department has said it may appeal.

Sacrificing Liberties Without Any Plausible Security Concern

Since 9/11, we have heard repeatedly, from the Bush Administration and others, that we must sacrifice some of our civil liberties in order to increase security, and protect our country against terrorism. This argument has provided support for a variety of measures, including the USA PATRIOT Act. And studies have shown that the majority of Americans have accepted this argument: They are willing to give up some degree of privacy and freedom if it is necessary to prevent further terrorist attacks.

But now, the Justice Department has made clear that it views its powers as much greater than this. It won't just use its new powers to curtail privacy and liberty when terrorism is suspected -- it will do so whenever its political agenda makes it advantageous to do so.

The Administration has also insisted that peace-loving Americans who are innocent of any wrongdoing have nothing to fear from these new laws and regulations. But now, the Attorney General has sought information about innocent persons -- who did nothing more than exercise their First Amendment rights, or their right to obtain a legal abortion. (Remember, even on the Attorney General's theory, the women who obtained abortions did nothing wrong: It is the doctors' medical necessity judgment that is at issue.)

The message could not be more clear: The government is not going to stop at only investigating people connected to terrorism; it is willing to look at the most personal aspects of anyone's life. And the guiding principle won't be security; it will be politics.

And yet, this should not be a partisan issue. Suppose a Democratic Administration were to use subpoenas to secretly investigate peaceful pro-life demonstrators, using the USA PATRIOT Act, as if they were terrorists. Or suppose a Democratic Administration were to use subpoenas to check on pro-life women's medical histories, to see if there were abortions in their pasts. Certainly, these actions would be equally appalling and objectionable. In the end, this is not a political issue: It is an issue about individual rights.

An Ever-Expanding Assault on Americans' Rights and Freedoms

The past two weeks will likely be recorded in history books as the moment when President Bush's homeland security regime crossed the line, and significantly intruded upon the lives of law-abiding, innocent Americans.

It may also come to be known as the moment when people living in the U.S. suddenly realized the extensive powers that the government can exercise against anyone, regardless of any connection to national security -- especially now, with the advent of the USA PATRIOT Act.

In his recent book, Enemy Aliens (reviewed on this site by Elaine Cassel), Georgetown Law Professor David Cole describes how, over U.S. history, violations of U.S. citizens' rights have often been foreshadowed by violations of the rights of non-citizens. Indeed, according to Cole, the expansion of rights-violations from non-citizens to citizens has been "virtually inevitable."

Cole worries that we may be in another such cycle now, which began with the restrictions of the rights of Arab-Americans and Muslims after September 11 and may be spreading to wider sectors of American society. And the recent subpoenas against peaceful demonstrators and medical providers seem to be playing out Cole's fears.

In 1976, Supreme Court Justice William Douglas wrote: "As night fall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air, however slight, lest we become unwitting victims of the darkness."

The federal government has repeatedly promised -- and Americans have generally believed -- that the government would violate civil liberties only if necessary to pursue Al Qaeda and other terrorist threats. But the events of the past two weeks have proven that that simply isn't true.

It's not accused Al Qaeda cell members who are the targets here. Instead, the targets are universities, peaceful protesters, civil rights attorneys, hospitals, and patients. It is no overstatement, now, to say to all Americans: Tomorrow, it could be you -- your medical records; your civic organization meeting; your protest rally. The time to protest is now -- before it's too late.

Noah Leavitt, an attorney and author, is the Advocacy Director of the Jewish Council on Urban Affairs. The views expressed here do not necessarily represent those of his organization. He can be contacted at

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