'We the people'

By Nat Hentoff
Published November 20, 2006


Thanks to the weak New York State Republican Party, Sen. Hillary Clinton easily won re-election, assuring her followers that the returns showed "that democracy and the Constitution are alive and well." Did that mean that the defeated candidates had been abandoned by the Constitution? Anyway, absent from all the fierce campaigning for the midterm elections -- including the wars of the attack ads -- was any mention of the state of sturdiness of the Constitution, especially, after the recent Military Commissions Act of 2006.

The new law has significantly overruled two Supreme Court decisions -- in 2004 (Rasul v. Bush) and 2006 (Hamdan v. Rumsfeld) -- concerning due-process rights, and treatment of detainees, under our War Crimes Act and the Geneva Conventions. It also greatly expanded the definition of "unlawful enemy combatants," with serious potential consequences for many legal immigrants in the United States -- and American citizens presumed to be terrorist suspects until they can prove otherwise.

There are also the still unresolved privacy rights of American citizens in the National Security Agency's warrantless eavesdropping on Americans -- as well as many other constitutional concerns by civil libertarians, including determinedly libertarian Republicans.
And the president, as the midterm elections neared, warned of the real possibility of the terrorists' "next attack on America" as he justified those warrantless wiretaps. Such attacks are indeed likely in what Gen. John Abizaid, the commander of major operations against the terrorists, calls "the long war" -- with no discernible end.

No matter which political party controls Congress during this long war, our individual liberties -- and conceivably those of the next generation of Americans -- could be cumulatively endangered because this enemy, as the president says, truly wants to kill us. After an attack of any magnitude in the future, there will be intense pressure on a president, Democrat or Republican, to deeply curtail, or even suspend, fundamental liberties -- unless the citizenry is so concerned about these liberties that there will be considerable debate in this nation.

One index of the current lack of concern about the present state of constitutional liberties are the results of an Oct. 20-22 CNN poll, reporting that "most Americans do not believe the Bush administration has gone too far [in the Patriot Act and subsequent laws and executive orders, some of them covert] in restricting civil liberties as part of the war on terror.

"Asked whether Bush has more power than any other U.S. president, 65 percent of poll respondents said no. Thirty-three percent said yes. Of those who said yes, (only) a quarter said that was bad for the country." No president in our history has assumed such unilateral authority.

On. Oct. 18, during an interview on MSNBC, Jonathan Turley -- a constitutional law professor at George Washington University and a regular commentator in a wide range of newspapers -- said of the public's reaction to the Military Commissions Act of 2006:

"The strange thing is, we've become sort of constitutional couch potatoes. I mean, the Congress just gave the president [in the Military Commissions Act] despotic powers [under the expanded definition of unlawful enemy combatants, among other sections of the law], and you could hear the yawn across the country as people turned to 'Dancing with the Stars.' "

"I'm not too sure," Mr. Turley continued, "how we got to this point. But people clearly don't realize what a fundamental change it is about who we are as a country...With the distance of [future] history, the question will be: Did this generation of Americans take this threat [to their liberties] seriously? And did we do what it takes to defeat this threat?...I think that history will ask, 'Where were you?...We are strangely silent in this national yawn as our rights evaporate."
There are still enough Americans who are not yawning to make a difference -- as was demonstrated by the extent to which the Bill of Rights Defense Committees around the nation organized protests against the Patriotic Act (which had some effect on Congress). But with the Democratic leadership now in charge in Congress, I expect little passion for the health of the Constitution from Rep. Nancy Pelosi and Sen. Harry Reid.

However, there are members of Congress who know of James Madison and Thomas Jefferson -- most notably Democratic Sen. Patrick Leahy of Vermont. And the Bill of Rights Defense Committees are still out there trying to guard the Constitution -- as are the American Civil Liberties Union; the libertarian free-market Cato Institute; and David Keene, head of the American Conservative Union.

As Ronald Reagan reminded us: "Our Constitution is a document in which 'We the People' tell the government what it is allowed to do. 'We the People' are free." Let's keep it that way.

http://www.washingtontimes.com/op-ed/20061119-102607-4683r.htm