Jesse Berney
The beginning of the end for the Constitution?
Mon Jul 3, 2006 17:46

Give me liberty, or give me death. Anything less is unpatriotic.

The beginning of the end for the Constitution?
Jesse Berney

President Bush has begun a fascinating new strategy in the war on terrorism. He has wisely pointed out that we were attacked on September 11 because the terrorists "hate freedom." Can there be any questioning this insight? Surely Osama bin Laden is sitting in a cave somewhere, fuming over the freedoms Americans enjoy. It's not about our troops in Saudi Arabia. He doesn't really care about our support of Israel. As long as we're free, Osama bin Laden and his Al Qaeda organization won't stop their attacks.

So in a brilliant tactical move, President Bush has started to take away our freedoms.

Think about it. With all our freedoms gone, the terrorists will have no reason to hate us any more. They'll pack up their Kalashnikovs and flight-training manuals, move out of their caves, and become productive members of society again. This strategy of the Bush administration is a masterstroke, one that will ensure the safety of Americans for years to come. Once again we'll be able to fly free from fear (except to worry about the occasional tail fin falling off).

Because of the September 11 attacks, Bush is enjoying unprecedented levels of popularity. Americans, convinced it is their patriotic duty to "stand behind the president," have made it difficult for elected officials to oppose any of his policies. This has upset the delicate balance among our government's branches, and Bush has taken advantage of the situation to extend his power as the nation's chief executive into realms normally occupied by the Congress and the courts. Here are just a few examples.

Overturning the Presidential Records Act of 1978
In the wake of Watergate, one thing was perfectly clear: a president who does not believe he will be held accountable for is actions is a dangerous creature. Richard Nixon believed he was ultimately beyond the reach of the law, so he broke it.

So in 1978, Congress passed the Presidential Records Act. It dictated that 12 years after a president left office, all his papers not immediately relevant to national security would be available to the public. Ronald Reagan was the first president to fall under the purview of the Act, and his papers were slated for release this year.

But President Bush's father, along with many Bush cronies, served in the Reagan administration. Reagan and the elder Bush have largely avoided historical judgement for the scandals that should have plagued their presidencies as well as their legacies. The Iran-Contra affair, the BCCI scandal, the Savings & Loan debacles: all of these should have resulted in public humiliations for the two presidents, but they actually suffered few consequences. Reagan is actually hailed in conservative circles as the greatest president of the 20th century. And many Reagan and George H.W. Bush officials now serve in the current Bush administration.

This means that anything revealed in Reagan's papers could potentially destroy his legacy, embarrass conservatives, and end the careers of several members of the Bush administration.

So it was hardly surprising that Bush wrote an executive order overturning the Presidential Records Act. His order made it possible for the current president, the ex-president whose papers are under consideration, or that president's family in case of his death to block the release of his papers. Basically it means that presidents no longer need to fear exposure for their immoral deeds; they and their families can block it for all time.

What does this mean for the Constitution? Executive orders are supposed to be a mechanism by which the president directs federal agencies to carry out his wishes. In the absence of a law, they serve to dictate the policy of the federal government. However, they cannot replace a law, as passing legislation is solely in the hands of Congress. In effect, President Bush is trying to "veto" a law passed more than 20 years ago; clearly this is unconstitutional.

Bush had delayed the release of the Reagan records several times before signing this executive order. But with his popularity skyrocketing after the September 11 attacks, he was able to get away with an unconstitutional act that protects Reagan, his father, and himself from the consequences of any unsavory covert actions.

Eliminating the right of attorney-client privilege for 1,000 detainees suspected of ties to terrorism
Not long after the attacks, the Bush administration rounded up and detained more than 1,000 people suspected of ties to the terrorists. This is good news; finding the people responsible for the attacks (the people still living, anyway) and preventing future attacks are and should be high priorities for the Justice Department.

But then Attorney General John Ashcroft made an announcement that the government would be monitoring calls between the detainees and their lawyers.

The courts have stated clearly that attorney-client privilege is sacrosanct. The Sixth Amendment states that any one accused of a crime shall "have the assistance of counsel for his defense," and it's obvious that anyone who can't speak freely to his lawyer might as well not have a lawyer at all. Any time the government listens in on a conversation between a lawyer and his client, it has violated the Sixth Amendment. Not only is it wrong for the Justice Department to monitor those conversations, but it runs the risk of actual terrorists being set free because their civil liberties were violated.

Some argue that terrorists should not enjoy the same rights as we do, but these people miss the point. The rights in the Constitution exist because we don't know whether the people held right now are terrorists.

If you say that suspected terrorists shouldn't have rights, you can make the same argument about suspected murderers. Eventually you'll make it about suspected criminals, and before long suspected dissidents shouldn't have the rights of patriotic citizens. The Bush administration's attack on the Sixth Amendment--no matter who its target--should put fear into us all. It's an attack on our very freedom, the heart of what makes us American.

Using military tribunals to try terrorists captured abroad
It's hard to say whether we'll ever catch Osama bin Laden. Afghanistan is a big country with a lot of hiding places. He has sympathizers all over the world who would consider it an honor to protect him from justice. But we may catch him and his associates soon, and if we do, the Bush administration doesn't want to give them a public trial.

Instead, the president has proposed trying them with a military tribunal. This improvised court can be organized anywhere, even on a ship at sea. Judgements would require only a two-thirds majority of a tribunal and would not be subject to appellate review. Sentences--including death--could be carried out immediately. Perhaps most shockingly, Defense Secretary Donald Rumsfeld would set the burden of proof for these trials. While the accepted burden in the American justice system is guilt beyond a reasonable doubt, Rumsfeld, who has no legal training, could conceivably require a tribunal to have nothing more than a "strong suspicion" that someone is guilty of terrorism to return a guilty verdict.

There's no reason not to bring suspected terrorists back to the United States and try them in a court of law. (The administration's stated reason, that they fear for the safety of jurors, is absurd. Millions of Americans would be willing to risk their lives for the cause of bringing the terrorists to justice.) We have tried terrorists in our court system before, and we could do it again.

And of course, the proposal is a direct attack on the Constitution. Trying and sentencing criminals is the job of the judicial system, and ours is the best in the world. Nothing in the Constitution gives President Bush the right to extend the powers of the executive branch in this manner.

Whether or not Osama bin Laden "deserves" a fair trial is irrelevant. Fair trials are our mechanism for doling out justice in this country, and it's offensive to the Constitution for Bush to assign himself that responsibility.

The Constitution has survived attacks before. The Alien and Sedition Acts. Abraham Lincoln's suspension of habeus corpus. Our internment of Japanese-Americans during World War II. These were all crimes committed by our government, and history has judged them all as wrong.

Chances are, the Bush administration's attacks on our freedoms will suffer the same fate. Right now, Bush can get away with anything, so he's trying to get away with everything. But his unconstitutional infringements on our rights probably won't last, and history will likely judge them, too, as wrong.

But Americans are all too eager to give up their rights in the wake of the September 11 attacks. Extraordinary times call for extraordinary measures, they say, and public safety should be our top priority.

But public safety shouldn't be our top priority. America is the supposed to be the land of the free and the home of the brave, and giving up our rights because of fear is inherently un-American. Patrick Henry said, "Give me liberty, or give me death." He knew that a country not willing to fight for its freedom was not one worth living in.

It isn't the terrorists we should fear. It's our own government, led by a president who sees a bump in the polls as an opportunity to expand his powers to unprecedented levels, Constitution be damned. Now is the time when all Americans should be especially vigilant. Our freedom is at risk, and we mustn't give it up simply because we live in fear of madmen who wish us dead.

Give me liberty, or give me death. Anything less is unpatriotic.
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