There have been American presidents to whom the Constitution has been a nuisance to be overruled by any means necessary. In 1798, only seven years after the Bill of Rights was ratified, John Adams triumphantly led Congress in the passage of the Alien and Sedition Acts, which imprisoned a number of journalists and others for bringing the president or Congress into "contempt or disrepute." So much for the First Amendment.During the Civil War, Abraham Lincoln actually suspended the writ of habeas corpus. Alleged constitutional guarantees of peaceful dissent were swept away during the First World War -- with the approval of Woodrow Wilson. For example, there were more than 1,900 prosecutions for anti-war books, newspaper articles, pamphlets and speeches. And Richard Nixon seemed to regard the Bill of Rights as primarily a devilish source of aid to his enemy. No American president, however, has done so much damage to constitutional liberties as Bill Clinton -- often with the consent of Republicans in Congress. But it has been Clinton who had the power and the will to seriously weaken our binding document in ways that were almost entirely ignored by the electorate and the press during the campaign.
Unlike Lincoln, for example, Clinton did a lot more than temporarily suspend habeas corpus. One of his bills that has been enacted into law guts the rights that Thomas Jefferson insisted be included in the Constitution. A state prisoner on death row now has only a year to petition a federal court to review the constitutionality of his trial or sentence. In many previous cases of prisoners eventually freed after years of waiting to be executed, proof of their innocence has been discovered long after the present one year limit.
Moreover, the Clinton administration is -- as the ACLU's Laura Murphy recently told the National Law Journal -- "the most wire-tap-friendly administration in history."
And Clinton ordered the Justice Department to appeal a unanimous 3rd Circuit Court of Appeals decision declaring unconstitutional the Communications Decency Act censoring the Internet, which he signed into law.
There is a chilling insouciance in Clinton's elbowing the Constitution out of the way. He blithely, for instance, has stripped the courts of their power to hear certain kinds of cases. As Anthony Lewis points out in the New York Times, Clinton has denied many people their day in court.
For one example, says Lewis, "The new immigration law . . . takes away the rights of thousands of aliens who may be entitled to legalize their situation under a 1986 statute giving amnesty to illegal aliens." Cases involving as many as 300,000 people who may still qualify for amnesty have been waiting to be decided. All have now been thrown out of court by the new immigration law.
There have been other Clinton revisions of the Constitution, but in sum -- as David Boaz of the Cato Institute has accurately put it -- Clinton has shown "a breathtaking view of the power of the federal government, a view directly opposite the meaning of 'civil libertarian.' "
During the campaign there was no mention at all of this breathtaking exercise of federal power over constitutional liberties. None by former senator Bob Dole who has largely been in agreement with this big government approach to constitutional "guarantees." Nor did the press ask the candidates about the Constitution.
Laura Murphy concludes that "both Clinton and Dole are indicative of how far tbe American people have slipped away from the notions embodied in the Bill of Rights." She omitted the role of the press, which seems focused primarily on that part of the First Amendment that protects the press.
Particularly revealing were the endorsements of Clinton by the New York Times, The Washington Post and the New Republic, among others. In none of them was the president's civil liberties record probed. (The Post did mention the FBI files at the White House.) Other ethical problems were cited, but nothing was mentioned about habeas corpus, court-stripping, lowering the content of the Internet to material suitable for children and the Clinton administration's decided lack of concern for privacy protections of the individual against increasingly advanced government technology.
A revealing footnote to the electorate's ignorance of this subverting of the Constitution is a statement by N. Don Wycliff, editorial page editor of the Chicago Tribune. He tells Newsweek that "people are not engaged in the [political] process because there are no compelling issues driving them to participate. It would be different if we didn't have peace and prosperity."
What more could we possibly want?
We're not trying to bash Clinton and Gore here. We're pointing out why many on the left (e.g. the ACLU and criminal defense lawyers) bond with the right on privacy and civil liberties issues. The centrist dems and republicans are the ones to fear. When we're thinking of who the Dems should run for president in 2004, we hope people will be attuned to the importance of preserving our fundamental consitutional rights.
Thanks to rachelrachel for bringing to our attention this American Prospect article by Nicolas Confessore, In Bed With Bob Barr , The American Prospect vol. 12 no. 19, November 5, 2001, through the comments section of our post yesterday, Privacy Invasion: Who's To Blame?
Here are rachelrachel's selected quotes from the article:In a sense, the only people truly prepared to spring into action after the terrorist attacks on September 11 were the civil-liberties groups. "I knew there was going to be a problem, that we were going to see an effort to restrict civil liberties," recalls Morton Halperin, a State Department veteran and former national-security analyst at the American Civil Liberties Union. The day after the attack, Halperin began e-mailing his colleagues...
While Halperin and the ACLU were rounding up the usual suspects on the left, [Grover] Norquist was working his connections on the right. By the end of September, Organizations in Defense of Freedom included not just the left-leaning Alliance for Justice, Americans for Democratic Action, and Human Rights Watch, but also such conservative groups as Phyllis Schlafly's Eagle Forum, Paul Weyrich's Free Congress Foundation, and the American Conservative Union...
Increasingly, the civil-liberties community began to turn to conservative Republicans for traction against the Clinton administration as well as Democratic and Republican centrists. "I think it was principled and it was politics," says one civil-liberties lawyer. "The principle was opposition to government power, and the politics was opposition to Bill Clinton...."
Of course, that's not necessarily good. . . Some conservative organizations, such as the NRA, have unique interpretations of certain civil liberties. Other groups have only selective enthusiasm for them. But then, so did the Clinton administration.
Ding Dong, the wicked witch is dead!
Operation Tips, the Justice Department and Ashcroft's proposal to make Americans spy on their neighbors and customers and then call the Government and drop a dime on them, is DEAD.
"The Homeland Security package approved by the Senate last week and slated to be signed by President Bush includes language explicitly prohibiting the government from implementing the controversial initiative. It was hounded by criticism from civil libertarians and targeted for elimination by key lawmakers."
"... as details about the program began to leak out, parties as divergent as the American Civil Liberties Union and House Majority Leader Richard K. Armey (R-Tex.) rallied to condemn the effort. They argued it would encourage citizens to snoop on one another while doing little to safeguard the nation."
"The initiative quickly became a public-relations disaster for Attorney General John D. Ashcroft and other Bush administration officials. It served as a symbol for anti-terrorism policies that many Democrats and civil liberties groups considered heavy-handed."
Our view: This was a proposal that would have encouraged searches of our residences without a warrant or even probable cause. It would have cost the Government (and us, the taxpayers) a lot of money to follow what likely would be mostly useless tips. And it had the potential for fueling vigilantism and racial profiling.
We especially liked this from the July 17 Boston Globe editorial, Ashcroft vs. Americans:
"Ashcroft's informant corps is a vile idea not merely because it violates civil liberties in a narrow legal sense or because it will sabotage genuine efforts to prevent terrorism by overloading law enforcement officials with irrelevant reports about Americans who have nothing to do with terrorists. Operation TIPS should be stopped because it is utterly anti-American. It would give Stalin and the KGB a delayed triumph in the Cold War - in the name of the Bush administration's war against terrorism."
Good riddance to Operation Tips, and may the Total Information Awareness (TIA) program meet the same fate.
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The LA Times has a special report on Gary Hart's possible re-emergence as a presidential candidate in 2004. Hart Tries to Get Off 'Sidelines' begins with:
"The former Democratic senator from Colorado has emerged from political exile to become the Cassandra of terrorism, issuing bleak predictions about the next attack on American soil."
Hart served on a terror task force in 2001 that issued a report that warned of "even greater casualties and widespread disruption to American lives and the economy." The Times, none too kindly, says "But the report didn't generate enough urgency to suit Hart, so he has been crusading to keep it alive -- appearing on talk shows, giving speeches and writing newspaper editorials."
Hart won't say whether he intends to run. "It's not about politics," he says. "It's about public service. I've tried to find a way to help my country. And I'll continue to do that."
Where has he been the past 15 years since his last run for the democratic presidential nomination?
"Hart says he has tried not to disappear. He has written six books. He has earned a doctorate from Oxford University. He has offered advice to politicians willing to listen. "I gave Bill Clinton all kinds of ideas," he says, "including to intervene in Ireland, which he took and ran with."
He has been practicing international law with a prominent firm in Downtown Denver (we can vouch for this as our office is in the same building and we see him in the lobby and elevator from time to time.)
What does he say about fighting the terror war?
"Aside from governmental vigilance, Hart stresses the need for an alert citizenry. "The tag line of every speech I've given over the last two years on this subject is: 'You in this audience are now front-line soldiers.'
"This war's being fought in our streets and cities. Nobody's going to ride in. The 82d Airborne isn't coming. The 1st Marine Division isn't going to be here. It'll be the Colorado National Guard. The cops on the beat. The fire and emergency management people. We're all going to have to get into this. Now, why can't the president say that?"
About Bush and Iraq:
"He decries Bush's readiness to invade Iraq, saying the nation isn't ready: "It's imprudent and it's folly. The threats to this country are going to skyrocket the minute the first U.S. soldier crosses the Iraqi border."
On the viability of his return to politics:
"When the Denver Post reported last month that Hart was speaking with friends about another run for president, Hart says he was deluged with support. "I've gotten a lot of e-mails," he says, a gleam in his eye. "Not one of them negative."
"But, even some of Hart's greatest admirers see his political resurrection as a remote possibility. Though he has gained new credibility in the war on terrorism, friends say, he would still have trouble shaking questions about character, especially after the scandals that dogged Clinton."
Ok, so we're a little torn here. Gary Hart sounds good on terrorism to us. He has always been quite liberal on domestic issues and has a true zeal for public service. He's an outgrowth of the Eugene McCarthy/ George McGovern days of the Democratic party-- which really were the last days that the party shined.
Gary Hart is more than smart. He's not a centrist. He knows politics inside and out. But the questions remain: Has he been out of the game too long? Will he ever live down the arrogant taunt he made to the media during his escapade with (now anti-porno queen) Donna Rice? Will he seem too Clintonesque?
We're not writing him off. But we're not jumping on his bandwagon yet either. Your thoughts?
The Washington Post has an excellent article exposing the Government's use of the material witness statute to indefinitely detain people without filing criminal charges.
The Post conducted a review of 44 cases and found :
"Authorities have arrested and jailed at least 44 people as potential grand jury witnesses in the 14 months of the nationwide terrorism investigation, but nearly half have never been called to testify before a grand jury, according to defense lawyers and others involved in the cases."
"Although they had not been charged with any crimes, these "material witnesses" were often held under maximum security conditions, in detentions ranging from a few days to several months or longer. At least seven of the witnesses were U.S. citizens."
"It is unknown whether these 44 cases represent all material witnesses taken into custody since Sept. 11, 2001, or some fraction of them. Law enforcement officials previously estimated that about two dozen material witnesses were arrested in connection with the probe."
"Criminal defense attorneys and civil liberties advocates argue that the cases show how the government has bent the material witness statute -- originally designed to compel testimony from frightened or recalcitrant witnesses -- into a tool to detain suspects indefinitely while investigating them for possible links to terrorism."
Of all the persons arrested on material witness warrants, only two have been charged with a crime, James Ujaama in Seattle and Zacarias Moussaoui in Virginia. Jose Padilla, the dirty bomb suspect, has been declared an enemy combatant and is being held in a miltary brig without right of counsel. Yaser Hamdi is also being held without charges or access to counsel.
The material witness statute was enacted in 1984. It provides that "prosecutors may seek an arrest warrant if a potential witness's testimony is "material" to a criminal proceeding and the individual is likely to flee. A judge must approve the warrant, and the witness is entitled to a bond hearing and a court-appointed attorney."
The statute, 18 U.S.C. 3144, reads as follows:
Sec. 3144. - Release or detention of a material witness
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure."
Law Professor Jeff Cooper of Cooped Up makes an eloquent case for the righteousness of last week's federal court ruling in Glassroth v. Moore banning a monument to the Ten Commandments in an Alabama Courthouse. The decision was written by U.S. District Court Judge Myron H. Thompson and held that the Ten Commandments monument in the Alabama Judicial Building violates the establishment clause and must be removed.
Jeff distinguishes this case from the one earlier this year involving the Pledge of Allegiance. He argues that we cannot accept political expediency or backlash as a justification to abdicate from the clear meaning of such a central provision of the Bill of Rights:
"The monument in question is newly-installed, at the instigation and under the authority of the Chief Justice of the Alabama Supreme Court. And Chief Justice Moore made it clear, in his public statements and in his trial testimony, that his purpose in placing the monument prominently in the courthouse rotunda was to acknowledge the sovereignty of God—the Judeo-Christian God—over the state. As such, Chief Justice Moore's actions represented a clear and powerful governmental endorsement of a particular family of religions. They amount to a frontal assault on the Supreme Court's establishment clause jurisprudence by the most prominent judicial officer in the state."
"There are growing forces seeking to advance a radically different vision of the First Amendment than the one that currently prevails in Supreme Court jurisprudence and to bar contrary voices from the courts. Chief Judge Moore's monument is an important part of this effort. Here we have a religious document, prominently placed in an important government building, for an express religious purpose. If the establishment clause is to retain meaning beyond barring government endorsement of one particular Christian denomination, this action cannot be allowed to pass unchallenged. "
For those who haven't looked at the First Amendment lately, since it has become a daily staple of the media, we thought we'd reprint it:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances
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And so it begins....
"The Justice Department, moving quickly to use its expanded powers for spying on possible terrorists, plans to assign federal lawyers in counterintelligence to terrorism task forces in New York and Washington to help secure secret warrants against suspects, officials say."
"Critics worry that it could mean a return to the days of J. Edgar Hoover's F.B.I. in the 1960's, when agents routinely spied on people and groups for political reasons."
"A Justice Department official who has been working on the issue said.... 'In practical terms, on a scale of 1 to 10, this decision is about an 11 for us. There aren't these artificial barriers anymore. The wall is down.' "
"Justice Department officials said they were also planning to double the number of F.B.I. agents in the bureau's National Security Law Unit, create an electronic system that would allow field agents to draft surveillance applications instantly and require extensive training in surveillance law for agents and prosecutors."
Jason Rylander has been writing very worthy pieces criticizing the Bush Administration's anti-terror proposals as unnecessary invasions of our privacy rights. He mentions he received an email from law professor Jonathan Adler, stating:
"As for hypocrisy on the Right, just remember that the version of the USA Patriot Act that emerged from the "conservatives" in the House was less intrusive than that which emerged from Daschle's "liberal" Senate."
Jason says this is a tough criticism to address, "because on the face of it, Adler is correct."
We agree that Professor Adler is correct. The Democrats have not been strong on civil and constitutional rights. The Clinton administration, which we admire for other accomplishments, was terrible in these areas.
We wrote an article about this in 1996 titled Partisan Politics vs. the Bill of Rights, originally published in the Champion, the magazine of the National Association of Criminal Defense Lawyers. Many of the points we made in the article seem just as valid to us today. Here's a piece of the article:Congress has once again placed itself on a collision course with the Bill of Rights. With the presidential and congressional elections just two months away, our politicians are once more trying to demonstrate their tough stance on crime and concern for our security by introducing and promising swift passage of legislation that diminishes our privacy rights and provides even greater powers to federal law enforcement agencies.Using the tragedies of TWA Flight 800 and the Olympic bombing in Atlanta to instill fear of terrorism in the heart of every American, our politicians are promising to make us safe and secure by giving the FBI the power to wiretap more of us with less judicial scrutiny, to access our personal and financial records with no judicial oversight, and to seize our assets by classifying us as "terrorists" based upon our personal and political beliefs.
President Clinton and the Democrats are behind this latest assault on our privacy rights. On the eve of the first anniversary of the Oklahoma bombing in April, 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996. The Democrats were very disappointed, however, because the bill passed without proposed expansions of wiretapping authority. In May 1996, Reps. Charles Schumer (D-NY) and John Conyers (D-MI) introduced H.R. 3409 "to combat domestic terrorism." The bill, titled the "Effective Anti-Terrorism Tools for Law Enforcement Act of 1996," would expand the powers granted to the FBI to engage in multi- point (roving) wiretaps and emergency wiretaps without court orders, and to access an individual's hotel and vehicle and storage facility rental records. It also relaxed the requirements for obtaining pen register and trap and trace orders in foreign intelligence investigations.
Particularly when it comes to electronic surveillance, we're much more aligned with the conservative Republicans and libertarians than we are with the Democrats. Bush, unfortunately, is a centrist on many issues and not much different than the current crop of democrats. This is another reason we advise the Democrats to start moving left and get out of center field. Show the country you care about individual liberties, that there is a difference between the two parties, and give the voters a real choice next time. The only thing you have to lose is your extinction as a voice and powerful force in American politics.
Politics in the Zeros lists and describes some computer privacy tools to restrict access to your internet activity.
The ACLU has agreed "in principle" to hire defeated G.O.P. Congressman Bob Barr as a consultant , working on "privacy, surveillance and national security issues."
That's one of the strange things about Bob Barr. As awful as he is on criminal justice issues, that's how good he's been on civil rights. It's always been a prime example of the saying, "politics make strange bedfellows."
We're pleased that Barr is joining the ACLU--anything to keep him away from legislating and having a vote on crime issues.
We agree with the analysis by Martin Sieff, UPI Senior News Analyst, that Democrats need to turn left to survive.
"Politics is not only the art of the possible, it is also the history of the unanticipated. Therefore for the Democrats even to dream of a comeback, they must do the unexpected, otherwise they will experience the unprecedented. They must tack to the left, and reevaluate the present in the light of their own past. Or else they will crown their relentless, humiliating, sustained eclipse of the past 36 years with a total extinction as complete as that of the 1850s Whigs -- or the Jurassic dinosaurs."
A new report by the Century Foundation, a progressive think tank, finds that the Bush Administration's anti-terror powers curtail civil rights
"Actions taken by the administration of President George W. Bush and Congress since Sept. 11 in the effort to combat terrorism effectively erode individual freedoms while exceeding the historical powers assumed by past presidents in times of national emergency, according to a new report from a New York think tank."
"Despite their intent, these actions also hold little prospect of improving the chance of stopping terrorist threats, Stephen J. Schulhofer, professor of law at New York University writes in his report, "The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11."
The report is available here.
The Century Foundations' mission statement mentions their founding of Citizens for the Constitution and Citizens for Independent Courts, "organizations active in responding to both radical and right-wing assaults on our system of government."
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