Bipartisan War Against the Constitution

Benjamin Franklin once wrote that a "People willing to trade their freedom for temporary security deserve neither and will lose both." The citation is likely apocryphal, at least in terms of its attribution to Franklin, but it is useful shorthand regarding the nature of the constitutional dilemma confronting the United States since 9/11. Many Americans accept that there has to be some abridgement of fundamental liberties while fighting a multi-faceted and unconventional war against terrorism, but few are actually aware just how much the constitutional rights that all citizens take for granted have been eroded. History also teaches us that once a right is suspended in all likelihood it is gone forever, particularly given the unwillingness of Congress to confront the White House over the Constitution, which President George W. Bush has described as "just a goddamned piece of paper." The virtual pillaging of the Bill of Rights by the White House and Congress is particularly regrettable in that the government cannot cite a single case where the use of the draconian new legislation has led to the arrest of anyone who was ready, willing, and able to carry out a terrorist act.

There have been four significant legislative infringements on American liberties over the past six years that have limited constitutional rights to free speech, freedom of association, freedom from illegal search, the right to habeas corpus, prohibition of cruel and unusual punishment, and freedom from the illegal seizure of private property. The First, Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights have all been disregarded in the rush to make it easier to investigate people, put them in jail, and torture them if necessary, even if they are not guilty.

Two major abridgements of constitutional liberties have been in the form of acts of Congress and two have been executive orders. The better known of the two acts of Congress is the so-called USA Patriot Act, which was first signed into law on October 26, 2001 and was later expanded and reissued on March 9, 2006. The full name of the original law was The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, which might well be described as one of history's more spectacular euphemisms employed to gut a constitution, somewhat akin to Hitler's "fire decree" and "emergency act" in the wake of the Reichstag fire of 1933. The Patriot Act in its current form permits indefinite detention of immigrants and non-citizens, allows law enforcement to search a home or business without the owner's permission or knowledge, permits unlimited use of National Security Letters (NSL) to access personal records without any oversight process, and allows law enforcement to review hitherto protected government and commercial records to include library withdrawals and book purchases. It has been reported that the FBI now issues as many as 30,000 NSLs per year, most of which have nothing to do with terrorism, and the recipient of an NSL cannot reveal that he or she has received a letter. The Patriot Act also incorporates the Financial Anti-Terrorism Act of October 17th, 2001, which permits the freezing of assets and investigation of individuals suspected of being financial supporters of terrorism. "Suspected" is the key word, as there is no oversight or appeal to the process.

When the reauthorized Patriot Act was signed into law on March 9, 2006 after approval by Congress, President George W. Bush issued a "signing statement' stating that he would not feel bound by any provisions of the law that contradicted his constitutional authority. It is believed that his comment related to the requirement that he brief Congress on the application of the act, so it should also be assumed that no oversight of any kind is taking place.

The second act of Congress is the Military Commission Act of 2006 (MCA), which created military tribunals for the trying of "unlawful enemy combatants." Unlike a civil or criminal court, the accused needs only a two-thirds vote by the commission members present to be convicted. The act permits the indefinite jailing of suspects in a military prison without providing access to a lawyer or charging with a crime. The government is not required to produce any normally admissible evidence at a commission hearing and can rely on hearsay or even on information obtained overseas during torture to make its case. Detainees do not have access to any classified information being used against them and cannot cross examine or even know the identity of witnesses. The MCA suspends habeas corpus for anyone charged and forbids the application of the Geneva Conventions to mitigate conditions of confinement or to challenge the judicial process or verdict. The Geneva Conventions also cannot be invoked if the accused subsequently claims he was tortured or otherwise abused, protecting overly zealous interrogators from later charges of "war crimes." The act was also designed to cover all cases that were pending, meaning that it was retroactive, and it is widely believed that it was drafted to cover prosecutions like that of Jose Padilla, a U.S. citizen who was confined in military prisons for over three years and was finally convicted in a civilian court for conspiracy rather than terrorism.

Although the act is intended to apply to non-citizens, the wording is sufficiently broad to make MCA usable against citizens as well if they are designated "unlawful enemy combatants" based solely on a decision by the president or by a designated authority. If the president says you are an enemy combatant, then you are. As the act also can be used against anyone who materially contributes to the support of terrorism, it could be applied after-the-fact to someone who contributed to a charity that the government somehow believes might be linked to a subversive organization.

The more recent of the two executive orders, number 13438 of July 17th, 2007, authorizes the President to seize the property of anyone who "Threatens Stabilization Efforts in Iraq." As the White House has identified Syria and Iran as countries that have hindered America's civilizing mission in Iraq, it has been widely assumed that the order is directed against them and permits more generalized freezing of assets. But the language is much broader than that and could also apply against war critics, since they too are hindering "stabilization efforts." The order also permits the freezing of assets of anyone who helps anyone whose financial instruments and property have been seized. This means that if you are a war critic and your assets have been frozen anyone coming to your assistance by providing you a loan or even legal assistance could also be subject to the order. The order does not permit any advance notice that someone's assets are about to be frozen and it does not permit a challenge to the information that the seizure is based on. As in the Military Commission Act, it could easily be used against someone who innocently contributed to a humanitarian relief fund or a charity.

Finally, there is the NSA warrantless surveillance program, which began in September 2001 as a secret program dubbed the Terrorist Surveillance Program and was later authorized with some caveats by a law passed by Congress in August 2007. The NSA program has been justified by its supporters through designation as a "foreign intelligence" program, but that description is not completely accurate as it also frequently involves data mining that follows communications links which might start overseas but wind up in the United States. Communications hubs that were directly accessed by the program, to include the principal AT&T server in San Francisco as well as Verizon and Bell South call centers, were all located in the U.S. In January 2007, under pressure from Congress and the media, Attorney General Alberto Gonzales agreed that while electronic surveillance would continue it would be subject to oversight by the Foreign Intelligence Surveillance Court of 1978 (FISC). The White House had previously insisted that the FISC process was not necessary due to the President's inherent authority as commander in chief and it is not clear to what extent FISC is actually involved at the present time. The administration has also failed to brief Congress on the surveillance as required by the National Security Act of 1947. No one knows how many phone calls have been intercepted and recorded by the program over the past six years, but some estimates suggest that the number must be in the hundreds of millions, requiring the creation of the world's largest data base.