by Nat Hentoff

In his last months, President Bush is working to ensure that his successor will have the greatly expanded power of the executive branch - unprecedented in American history - that Bush instituted after 9/11. His chief enabler in this ever-increasing surveillance of American citizens is Attorney General Michael Mukasey.

Senate Judiciary Committee Chairman Patrick Leahy and ranking minority member Arlen Specter are aware of Mukasey's plan for new FBI guidelines that could begin national security and criminal investigations of racial and ethnic groups without any evidence of wrongdoing. They have asked Mukasey to delay implementation until Congress can review the changes. Mukasey agreed but wants the expanded surveillance to begin Oct. 1.

Four Democratic senators - with the lamentable absence of their leader, Harry Reid - also have reminded the attorney general of his oath to protect the Constitution. Russ Feingold, Richard Durbin, Edward Kennedy and Sheldon Whitehouse warn not only Mukasey but also the rest of us that the new rules "might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities."

As Lara Jakes Jordan of The Associated Press (Aug. 18) pointed out: "The new policy, law enforcement officials said, would let agents open preliminary terrorism investigations after mining public records and intelligence (including tips from informants) to build a profile of traits that, taken together, were deemed suspicious." There would be no evidence of criminal activity.

Such "traits" could include a person's race or ethnicity.

Michael German, an FBI agent for 16 years and now a policy counsel for the American Civil Liberties Union, warns that if Mukasey goes ahead, he will undermine the restrictions placed on the FBI after the dragnet approach of FBI Director J. Edgar Hoover's COINTELPRO (domestic counter-intelligence program) during the 1950s and 1960s: "... These were corrections originally designed to prevent the type of overreach the FBI engaged in for years."

Long after those years, I obtained my FBI file through the Freedom of Information Act and found I had been "a person of interest" to COINTELPRO agents even though I was on record as a passionate anti-communist. I was just one of millions of innocent Americans looked into as Hoover promised "an FBI agent behind every mailbox."

Mukasey also has "proposed a new domestic-spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years" (The Washington Post, Aug. 16). State and local police agencies would not be hampered by Fourth Amendment's requirements that they must search and seize traces of our activities and beliefs only upon "probable cause" that we are, or have been or plan to be, involved in criminal actions. They would need only a suspicion that we somehow are involved in terrorism or are providing "material support" to terrorism. "Material support" can mean sending a check to a charitable organization that, unknown to the giver, provides funds to a group later listed by the government as a terrorist group.

The Fourth Amendment, contrary to Bush and Mukasey, mandates that state and local police and the FBI "particularly describe the place to be searched, and the persons or things to be seized" before an American can be entered into a database without probable cause of criminal activity.

If Bush and Mukasey succeed, state and local police and the FBI will increase their infiltration into organizations that object to administration policies as well as keep an unsleeping eye on various individuals with suspicious traits.

On Sept. 17, the occasionally independent FBI director, Robert Mueller, will testify at a hearing before the Senate Judiciary Committee.

He will have a patriotic opportunity to insist that Bush and Mukasey return to American citizens our Bill of Rights intact. And he should insist that public hearings be held on Mukasey's plan.

Meanwhile, I've heard nothing from Sen. Barack Obama and Sen. John McCain about the Mukasey revisions of the Bill of Rights. Do they care?

Do they remember that Sept. 17 is Constitution Day? Do you?