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November 10, 2003 – We at The Moderate Independent recently allowed
the question the press refuses to pose: Is the nation really
better off, as they all assert, having George Bush as President
because of 9/11, or might Al Gore have been better. (Read Story)
In that article, the question of whether or not
9/11 would have even happened in the first place if Al Gore was
President was raised. Was President Bush's choice to ignore
international affairs and warnings possibly responsible for allowing
9/11 to occur and would Al Gore have maybe acted otherwise and
prevented it?
Yesterday,
Al Gore gave us his answer. Here below are his comments about
this and what President Bush has done to civil liberties as given in
a speech before the American Constitution Society. The speech
is remarkable for the detailed itemization of the attacks on our
Constitution and role of President Bush in failing to take simple,
basic actions that could - and, quite simply, should have -
prevented 9/11 to begin with:
"Thank you, Lisa, for that warm and generous
introduction. Thank you Zack, and thank you all for coming here
today
I want to thank the American Constitution Society for co-sponsoring
today's event, and for their hard work and dedication in defending
our most basic public values.
And I am especially grateful to Moveon.org, not only for
co-sponsoring this event, but also for using 21st Century techniques
to breathe new life into our democracy.
For my part, I'm just a "recovering politician" – but I truly
believe that some of the issues most important to America's future
are ones that all of us should be dealing with.
And perhaps the most important of these issues is the one I want to
talk about today: the true relationship between Freedom and
Security.
So it seems to me that the logical place to start the discussion is
with an accounting of exactly what has happened to civil liberties
and security since the vicious attacks against America of September
11, 2001 – and it's important to note at the outset that the
Administration and the Congress have brought about many beneficial
and needed improvements to make law enforcement and intelligence
community efforts more effective against potential terrorists.
But a lot of other changes have taken place that a lot of people
don't know about and that come as unwelcome surprises. For example,
for the first time in our history, American citizens have been
seized by the executive branch of government and put in prison
without being charged with a crime, without having the right to a
trial, without being able to see a lawyer, and without even being
able to contact their families.
President Bush is claiming the unilateral right to do that to any
American citizen he believes is an "enemy combatant." Those are the
magic words. If the President alone decides that those two words
accurately describe someone, then that person can be immediately
locked up and held incommunicado for as long as the President wants,
with no court having the right to determine whether the facts
actually justify his imprisonment.
Now if the President makes a mistake, or is given faulty information
by somebody working for him, and locks up the wrong person, then
it's almost impossible for that person to prove his innocence –
because he can't talk to a lawyer or his family or anyone else and
he doesn't even have the right to know what specific crime he is
accused of committing. So a constitutional right to liberty and the
pursuit of happiness that we used to think of in an old-fashioned
way as "inalienable" can now be instantly stripped from any American
by the President with no meaningful review by any other branch of
government.
How do we feel about that? Is that OK?
Here's another recent change in our civil liberties: Now, if it
wants to, the federal government has the right to monitor every
website you go to on the internet, keep a list of everyone you send
email to or receive email from and everyone who you call on the
telephone or who calls you – and they don't even have to show
probable cause that you've done anything wrong. Nor do they ever
have to report to any court on what they're doing with the
information. Moreover, there are precious few safeguards to keep
them from reading the content of all your email.
Everybody fine with that?
If so, what about this next change?
For America's first 212 years, it used to be that if the police
wanted to search your house, they had to be able to convince an
independent judge to give them a search warrant and then (with rare
exceptions) they had to go bang on your door and yell, "Open up!"
Then, if you didn't quickly open up, they could knock the door down.
Also, if they seized anything, they had to leave a list explaining
what they had taken. That way, if it was all a terrible mistake (as
it sometimes is) you could go and get your stuff back.
But that's all changed now. Starting two years ago, federal agents
were given broad new statutory authority by the Patriot Act to
"sneak and peak" in non-terrorism cases. They can secretly enter
your home with no warning – whether you are there or not – and they
can wait for months before telling you they were there. And it
doesn't have to have any relationship to terrorism whatsoever. It
applies to any garden-variety crime. And the new law makes it very
easy to get around the need for a traditional warrant -- simply by
saying that searching your house might have some connection (even a
remote one) to the investigation of some agent of a foreign power.
Then they can go to another court, a secret court, that more or less
has to give them a warrant whenever they ask.
Three weeks ago, in a speech at FBI Headquarters, President Bush
went even further and formally proposed that the Attorney General be
allowed to authorize subpoenas by administrative order, without the
need for a warrant from any court.
What about the right to consult a lawyer if you're arrested? Is that
important?
Attorney General Ashcroft has issued regulations authorizing the
secret monitoring of attorney-client conversations on his say-so
alone; bypassing procedures for obtaining prior judicial review for
such monitoring in the rare instances when it was permitted in the
past. Now, whoever is in custody has to assume that the government
is always listening to consultations between them and their lawyers.
Does it matter if the government listens in on everything you say to
your lawyer? Is that Ok?
Or, to take another change -- and thanks to the librarians, more
people know about this one -- the FBI now has the right to go into
any library and ask for the records of everybody who has used the
library and get a list of who is reading what. Similarly, the FBI
can demand all the records of banks, colleges, hotels, hospitals,
credit-card companies, and many more kinds of companies. And these
changes are only the beginning. Just last week, Attorney General
Ashcroft issued brand new guidelines permitting FBI agents to run
credit checks and background checks and gather other information
about anyone who is "of investigatory interest," - meaning anyone
the agent thinks is suspicious - without any evidence of criminal
behavior.
So, is that fine with everyone?
Listen to the way Israel's highest court dealt with a similar
question when, in 1999, it was asked to balance due process rights
against dire threats to the security of its people:
"This is the destiny of democracy, as not all means are acceptable
to it, and not all practices employed by its enemies are open before
it. Although a democracy must often fight with one hand tied behind
its back, it nonetheless has the upper hand. Preserving the Rule of
Law and recognition of an individual's liberty constitutes an
important component in its understanding of security. At the end of
the day they (add to) its strength."
I want to challenge the Bush Administration's implicit assumption
that we have to give up many of our traditional freedoms in order to
be safe from terrorists.
Because it is simply not true.
In fact, in my opinion, it makes no more sense to launch an assault
on our civil liberties as the best way to get at terrorists than it
did to launch an invasion of Iraq as the best way to get at Osama
Bin Laden.
In both cases, the Administration has attacked the wrong target.
In both cases they have recklessly put our country in grave and
unnecessary danger, while avoiding and neglecting obvious and much
more important challenges that would actually help to protect the
country.
In both cases, the administration has fostered false impressions and
misled the nation with superficial, emotional and manipulative
presentations that are not worthy of American Democracy.
In both cases they have exploited public fears for partisan
political gain and postured themselves as bold defenders of our
country while actually weakening not strengthening America.
In both cases, they have used unprecedented secrecy and deception in
order to avoid accountability to the Congress, the Courts, the press
and the people.
Indeed, this Administration has turned the fundamental presumption
of our democracy on its head. A government of and for the people is
supposed to be generally open to public scrutiny by the people --
while the private information of the people themselves should be
routinely protected from government intrusion.
But instead, this Administration is seeking to conduct its work in
secret even as it demands broad unfettered access to personal
information about American citizens. Under the rubric of protecting
national security, they have obtained new powers to gather
information from citizens and to keep it secret. Yet at the same
time they themselves refuse to disclose information that is highly
relevant to the war against terrorism.
They are even arrogantly refusing to provide information about 9/11
that is in their possession to the 9/11 Commission – the lawful
investigative body charged with examining not only the performance
of the Bush Administration, but also the actions of the prior
Administration in which I served. The whole point is to learn all we
can about preventing future terrorist attacks.
Two days ago, the Commission was forced to issue a subpoena to the
Pentagon, which has – disgracefully – put Secretary Rumsfeld's
desire to avoid embarrassment ahead of the nation's need to learn
how we can best avoid future terrorist attacks. The Commission also
served notice that it will issue a subpoena to the White House if
the President continues to withhold information essential to the
investigation.
And the White House is also refusing to respond to repeated
bipartisan Congressional requests for information about 9/11 – even
though the Congress is simply exercising its Constitutional
oversight authority. In the words of Senator McCain, "Excessive
administration secrecy on issues related to the September 11 attacks
feeds conspiracy theories and reduces the public's confidence in
government."
In a revealing move, just three days ago, the White House asked the
Republican leadership of the Senate to shut down the Intelligence
Committee's investigation of 9/11 based on a trivial political
dispute. Apparently the President is anxious to keep the Congress
from seeing what are said to have been clear, strong and explicit
warnings directly to him a few weeks before 9/11 that terrorists
were planning to hijack commercial airliners and use them to attack
us.
Astonishingly, the Republican Senate leadership quickly complied
with the President's request. Such obedience and complicity in what
looks like a cover-up from the majority party in a separate and
supposedly co-equal branch of government makes it seem like a very
long time ago when a Republican Attorney General and his deputy
resigned rather than comply with an order to fire the special
prosecutor investigating Richard Nixon.
In an even more brazen move, more than two years after they rounded
up over 1,200 individuals of Arab descent, they still refuse to
release the names of the individuals they detained, even though
virtually every one of those arrested has been "cleared" by the FBI
of any connection to terrorism and there is absolutely no national
security justification for keeping the names secret. Yet at the same
time, White House officials themselves leaked the name of a CIA
operative serving the country, in clear violation of the law, in an
effort to get at her husband, who had angered them by disclosing
that the President had relied on forged evidence in his state of the
union address as part of his effort to convince the country that
Saddam Hussein was on the verge of building nuclear weapons.
And even as they claim the right to see the private bank records of
every American, they are adopting a new policy on the Freedom of
Information Act that actively encourages federal agencies to fully
consider all potential reasons for non-disclosure regardless of
whether the disclosure would be harmful. In other words, the federal
government will now actively resist complying with ANY request for
information.
Moreover, they have established a new exemption that enables them to
refuse the release to the press and the public of important health,
safety and environmental information submitted to the government by
businesses – merely by calling it "critical infrastructure."
By closely guarding information about their own behavior, they are
dismantling a fundamental element of our system of checks and
balances. Because so long as the government's actions are secret,
they cannot be held accountable. A government for the people and by
the people must be transparent to the people.
The administration is justifying the collection of all this
information by saying in effect that it will make us safer to have
it. But it is not the kind of information that would have been of
much help in preventing 9/11. However, there was in fact a great
deal of specific information that WAS available prior to 9/11 that
probably could have been used to prevent the tragedy. A recent
analysis by the Merkle foundation, (working with data from a
software company that received venture capital from a CIA-sponsored
firm) demonstrates this point in a startling way:
"In late August 2001, Nawaq Alhamzi and Khalid Al-Midhar bought
tickets to fly on American Airlines Flight 77 (which was flown into
the Pentagon). They bought the tickets using their real names. Both
names were then on a State Department/INS watch list called TIPOFF.
Both men were sought by the FBI and CIA as suspected terrorists, in
part because they had been observed at a terrorist meeting in
Malaysia.
These two passenger names would have been exact matches when checked
against the TIPOFF list. But that would only have been the first
step. Further data checks could then have begun.
Checking for common addresses (address information is widely
available, including on the internet), analysts would have
discovered that Salem Al-Hazmi (who also bought a seat on American
77) used the same address as Nawaq Alhazmi. More importantly, they
could have discovered that Mohamed Atta (American 11, North Tower of
the World Trade Center) and Marwan Al-Shehhi (United 175, South
Tower of the World Trade Center) used the same address as Khalid Al-Midhar.
Checking for identical frequent flier numbers, analysts would have
discovered that Majed Moqed (American 77) used the same number as
Al-Midhar.
With Mohamed Atta now also identified as a possible associate of the
wanted terrorist, Al-Midhar, analysts could have added Atta's phone
numbers (also publicly available information) to their checklist. By
doing so they would have identified five other hijackers (Fayez
Ahmed, Mohand Alshehri, Wail Alsheri, and Abdulaziz Alomari).
Closer to September 11, a further check of passenger lists against a
more innocuous INS watch list (for expired visas) would have
identified Ahmed Alghandi. Through him, the same sort of relatively
simple correlations could have led to identifying the remaining
hijackers, who boarded United 93 (which crashed in Pennsylvania)."
In addition, Al-Midhar and Nawaf Alhamzi, the two who were on the
terrorist watch list, rented an apartment in San Diego under their
own names and were listed, again under their own names, in the San
Diego phone book while the FBI was searching for them.
Not to put too fine a point on it, but what is needed is better and
more timely analysis. Simply piling up more raw data that is almost
entirely irrelevant is not only not going to help. It may actually
hurt the cause. As one FBI agent said privately of Ashcroft: "We're
looking for a needle in a haystack here and he (Ashcroft) is just
piling on more hay."
In other words, the mass collecting of personal data on hundreds of
millions of people actually makes it more difficult to protect the
nation against terrorists, so they ought to cut most of it out.
And meanwhile, the real story is that while the administration
manages to convey the impression that it is doing everything
possible to protect America, in reality it has seriously neglected
most of the measures that it could have taken to really make our
country safer.
For example, there is still no serious strategy for domestic
security that protects critical infrastructure such as electric
power lines, gas pipelines, nuclear facilities, ports, chemical
plants and the like.
They're still not checking incoming cargo carriers for radiation.
They're still skimping on protection of certain nuclear weapons
storage facilities. They're still not hardening critical facilities
that must never be soft targets for terrorists. They're still not
investing in the translators and analysts we need to counter the
growing terror threat.
The administration is still not investing in local government
training and infrastructures where they could make the biggest
difference. The first responder community is still being
shortchanged. In many cases, fire and police still don't have the
communications equipment to talk to each other. The CDC and local
hospitals are still nowhere close to being ready for a biological
weapons attack.
The administration has still failed to address the fundamental
disorganization and rivalries of our law enforcement, intelligence
and investigative agencies. In particular, the critical FBI-CIA
coordination, while finally improved at the top, still remains
dysfunctional in the trenches.
The constant violations of civil liberties promote the false
impression that these violations are necessary in order to take
every precaution against another terrorist attack. But the simple
truth is that the vast majority of the violations have not benefited
our security at all; to the contrary, they hurt our security.
And the treatment of immigrants was probably the worst example. This
mass mistreatment actually hurt our security in a number of
important ways.
But first, let's be clear about what happened: this was little more
than a cheap and cruel political stunt by John Ashcroft. More than
99% of the mostly Arab-background men who were rounded up had merely
overstayed their visas or committed some other minor offense as they
tried to pursue the American dream just like most immigrants. But
they were used as extras in the Administration's effort to give the
impression that they had caught a large number of bad guys. And many
of them were treated horribly and abusively.
Consider this example reported in depth by Anthony Lewis:
"Anser Mehmood, a Pakistani who had overstayed his visa, was
arrested in New York on October 3, 2001. The next day he was briefly
questioned by FBI agents, who said they had no further interest in
him. Then he was shackled in handcuffs, leg irons, and a belly chain
and taken to the Metropolitan Detention Center in Brooklyn. Guards
there put two more sets of handcuffs on him and another set of leg
irons. One threw Mehmood against a wall. The guards forced him to
run down a long ramp, the irons cutting into his wrists and ankles.
The physical abuse was mixed with verbal taunts.
"After two weeks Mehmood was allowed to make a telephone call to his
wife. She was not at home and Mehmood was told that he would have to
wait six weeks to try again. He first saw her, on a visit, three
months after his arrest. All that time he was kept in a windowless
cell, in solitary confinement, with two overhead fluorescent lights
on all the time. In the end he was charged with using an invalid
Social Security card. He was deported in May 2002, nearly eight
months after his arrest.
The faith tradition I share with Ashcroft includes this teaching
from Jesus: "whatsoever you do unto the least of these, you do unto
me."
And make no mistake: the disgraceful treatment suffered by many of
these vulnerable immigrants at the hands of the administration has
created deep resentments and hurt the cooperation desperately needed
from immigrant communities in the U.S. and from the Security
Services of other countries.
Second, these gross violations of their rights have seriously
damaged U.S. moral authority and goodwill around the world, and
delegitimized U.S. efforts to continue promoting Human Rights around
the world. As one analyst put it, "We used to set the standard; now
we have lowered the bar." And our moral authority is, after all, our
greatest source of enduring strength in the world.
And the handling of prisoners at Guantanomo has been particularly
harmful to America's image. Even England and Australia have
criticized our departure from international law and the Geneva
Convention. Sec. Rumsfeld's handling of the captives there has been
about as thoughtful as his "postwar" plan for Iraq.
So the mass violations of civil liberties have hurt rather than
helped. But there is yet another reason for urgency in stopping what
this administration is doing. Where Civil Liberties are concerned,
they have taken us much farther down the road toward an intrusive,
"Big Brother"-style government -- toward the dangers prophesized by
George Orwell in his book "1984" -- than anyone ever thought would
be possible in the United States of America.
And they have done it primarily by heightening and exploiting public
anxieties and apprehensions. Rather than leading with a call to
courage, this Administration has chosen to lead us by inciting fear.
Almost eighty years ago, Justice Louis Brandeis wrote "Those who won
our independence by revolution were not cowards. . . . They did not
exalt order at the cost of liberty." Those who won our independence,
Brandeis asserted, understood that "courage [is] the secret of
liberty" and "fear [only] breeds repression."
Rather than defending our freedoms, this Administration has sought
to abandon them. Rather than accepting our traditions of openness
and accountability, this Administration has opted to rule by secrecy
and unquestioned authority. Instead, its assaults on our core
democratic principles have only left us less free and less secure.
Throughout American history, what we now call Civil Liberties have
often been abused and limited during times of war and perceived
threats to security. The best known instances include the Alien and
Sedition Acts of 1798-1800, the brief suspension of habeas corpus
during the Civil War, the extreme abuses during World War I and the
notorious Red Scare and Palmer Raids immediately after the war, the
shameful internment of Japanese-Americans during World War II, and
the excesses of the FBI and CIA during the Vietnam War and social
turmoil of the late 1960s and early 1970s.
But in each of these cases, the nation has recovered its equilibrium
when the war ended and absorbed the lessons learned in a recurring
cycle of excess and regret.
There are reasons for concern this time around that what we are
experiencing may no longer be the first half of a recurring cycle
but rather, the beginning of something new. For one thing, this war
is predicted by the administration to "last for the rest of our
lives." Others have expressed the view that over time it will begin
to resemble the "war" against drugs – that is, that it will become a
more or less permanent struggle that occupies a significant part of
our law enforcement and security agenda from now on. If that is the
case, then when – if ever -- does this encroachment on our freedoms
die a natural death?
It is important to remember that throughout history, the loss of
civil liberties by individuals and the aggregation of too much
unchecked power in the executive go hand in hand. They are two sides
of the same coin.
A second reason to worry that what we are witnessing is a
discontinuity and not another turn of the recurring cycle is that
the new technologies of surveillance – long anticipated by novelists
like Orwell and other prophets of the "Police State" -- are now more
widespread than they have ever been.
And they do have the potential for shifting the balance of power
between the apparatus of the state and the freedom of the individual
in ways both subtle and profound.
Moreover, these technologies are being widely used not only by the
government but also by corporations and other private entities. And
that is relevant to an assessment of the new requirements in the
Patriot Act for so many corporations – especially in the finance
industries – to prepare millions of reports annually for the
government on suspicious activities by their customers. It is also
relevant to the new flexibility corporations have been given to
share information with one another about their customers.
The third reason for concern is that the threat of more terror
strikes is all too real. And the potential use of weapons of mass
destruction by terrorist groups does create a new practical
imperative for the speedy exercise of discretionary power by the
executive branch – just as the emergence of nuclear weapons and
ICBMs created a new practical imperative in the Cold War that
altered the balance of war-making responsibility between Congress
and the President.
But President Bush has stretched this new practical imperative
beyond what is healthy for our democracy. Indeed, one of the ways he
has tried to maximize his power within the American system has been
by constantly emphasizing his role as Commander-in-Chief, far more
than any previous President -- assuming it as often and as visibly
as he can, and bringing it into the domestic arena and conflating it
with his other roles: as head of government and head of state – and
especially with his political role as head of the Republican Party.
Indeed, the most worrisome new factor, in my view, is the aggressive
ideological approach of the current administration, which seems
determined to use fear as a political tool to consolidate its power
and to escape any accountability for its use. Just as unilateralism
and dominance are the guiding principles of their disastrous
approach to international relations, they are also the guiding
impulses of the administration's approach to domestic politics. They
are impatient with any constraints on the exercise of power overseas
-- whether from our allies, the UN, or international law. And in the
same way, they are impatient with any obstacles to their use of
power at home – whether from Congress, the Courts, the press, or the
rule of law.
Ashcroft has also authorized FBI agents to attend church meetings,
rallies, political meetings and any other citizen activity open to
the public simply on the agents' own initiative, reversing a decades
old policy that required justification to supervisors that such
infiltrations has a provable connection to a legitimate
investigation;
They have even taken steps that seem to be clearly aimed at stifling
dissent. The Bush Justice Department has recently begun a highly
disturbing criminal prosecution of the environmental group
Greenpeace because of a non-violent direct action protest against
what Greenpeace claimed was the illegal importation of endangered
mahogany from the Amazon. Independent legal experts and historians
have said that the prosecution -- under an obscure and bizarre 1872
law against "sailor-mongering" -- appears to be aimed at inhibiting
Greenpeace's First Amendment activities.
And at the same time they are breaking new ground by prosecuting
Greenpeace, the Bush Administration announced just a few days ago
that it is dropping the investigations of 50 power plants for
violating the Clean Air Act – a move that Sen. Chuck Schumer said,
"basically announced to the power industry that it can now pollute
with impunity."
The politicization of law enforcement in this administration is part
of their larger agenda to roll back the changes in government policy
brought about by the New Deal and the Progressive Movement. Toward
that end, they are cutting back on Civil Rights enforcement, Women's
Rights, progressive taxation, the estate tax, access to the courts,
Medicare, and much more. And they approach every issue as a partisan
fight to the finish, even in the areas of national security and
terror.
Instead of trying to make the "War on Terrorism" a bipartisan cause,
the Bush White House has consistently tried to exploit it for
partisan advantage. The President goes to war verbally against
terrorists in virtually every campaign speech and fundraising dinner
for his political party. It is his main political theme. Democratic
candidates like Max Cleland in Georgia were labeled unpatriotic for
voting differently from the White House on obscure amendments to the
Homeland Security Bill.
When the Republican leader in the House of Representatives, Tom
DeLay, was embroiled in an effort to pick up more congressional
seats in Texas by forcing a highly unusual redistricting vote in the
state senate, he was able to track down Democratic legislators who
fled the state to prevent a quorum (and thus prevent the vote) by
enlisting the help of President Bush's new Department of Homeland
Security, as many as 13 employees of the Federal Aviation
Administration who conducted an eight-hour search, and at least one
FBI agent (though several other agents who were asked to help
refused to do so.)
By locating the Democrats quickly with the technology put in place
for tracking terrorists, the Republicans were able to succeed in
focusing public pressure on the weakest of the Senators and forced
passage of their new political redistricting plan. Now, thanks in
part to the efforts of three different federal agencies, Bush and
DeLay are celebrating the gain of up to seven new Republican
congressional seats in the next Congress.
The White House timing for its big push for a vote in Congress on
going to war with Iraq also happened to coincide exactly with the
start of the fall election campaign in September a year ago. The
President's chief of staff said the timing was chosen because "from
a marketing point of view, you don't introduce new products in
August."
White House political advisor Karl Rove advised Republican
candidates that their best political strategy was to "run on the
war". And as soon as the troops began to mobilize, the Republican
National Committee distributed yard signs throughout America saying,
"I support President Bush and the troops" -- as if they were one and
the same.
This persistent effort to politicize the war in Iraq and the war
against terrorism for partisan advantage is obviously harmful to the
prospects for bipartisan support of the nation's security policies.
By sharp contrast, consider the different approach that was taken by
Prime Minister Winston Churchill during the terrible days of October
1943 when in the midst of World War II, he faced a controversy with
the potential to divide his bipartisan coalition. He said, "What
holds us together is the prosecution of the war. No…man has been
asked to give up his convictions. That would be indecent and
improper. We are held together by something outside, which rivets
our attention. The principle that we work on is, 'Everything for the
war, whether controversial or not, and nothing controversial that is
not bona fide for the war.' That is our position. We must also be
careful that a pretext is not made of war needs to introduce
far-reaching social or political changes by a side wind."
Yet that is exactly what the Bush Administration is attempting to do
– to use the war against terrorism for partisan advantage and to
introduce far reaching controversial changes in social policy by a
"side wind," in an effort to consolidate its political power.
It is an approach that is deeply antithetical to the American
spirit. Respect for our President is important. But so is respect
for our people. Our founders knew – and our history has proven –
that freedom is best guaranteed by a separation of powers into
co-equal branches of government within a system of checks and
balances -- to prevent the unhealthy concentration of too much power
in the hands of any one person or group.
Our framers were also keenly aware that the history of the world
proves that Republics are fragile. The very hour of America's birth
in Philadelphia, when Benjamin Franklin was asked, "What have we
got? A Republic or a Monarchy?" he cautiously replied, "A Republic,
if you can keep it."
And even in the midst of our greatest testing, Lincoln knew that our
fate was tied to the larger question of whether ANY nation so
conceived could long endure.
This Administration simply does not seem to agree that the challenge
of preserving democratic freedom cannot be met by surrendering core
American values. Incredibly, this Administration has attempted to
compromise the most precious rights that America has stood for all
over the world for more than 200 years: due process, equal treatment
under the law, the dignity of the individual, freedom from
unreasonable search and seizure, freedom from promiscuous government
surveillance. And in the name of security, this Administration has
attempted to relegate the Congress and the Courts to the sidelines
and replace our democratic system of checks and balances with an
unaccountable Executive. And all the while, it has constantly angled
for new ways to exploit the sense of crisis for partisan gain and
political dominance. How dare they!
Years ago, during World War II, one of our most eloquent Supreme
Court Justices, Robert Jackson, wrote that the President should be
given the "widest latitude" in wartime, but he warned against the
"loose and irresponsible invocation of war as an excuse for
discharging the Executive Branch from the rules of law that govern
our Republic in times of peace. No penance would ever expiate the
sin against free government," Jackson said, "of holding that a
President can escape control of executive powers by law through
assuming his military role. Our government has ample authority under
the Constitution to take those steps which are genuinely necessary
for our security. At the same time, our system demands that
government act only on the basis of measures that have been the
subject of open and thoughtful debate in Congress and among the
American people, and that invasions of the liberty or equal dignity
of any individual are subject to review by courts which are open to
those affected and independent of the government which is curtailing
their freedom."
So what should be done? Well, to begin with, our country ought to
find a way to immediately stop its policy of indefinitely detaining
American citizens without charges and without a judicial
determination that their detention is proper.
Such a course of conduct is incompatible with American traditions
and values, with sacred principles of due process of law and
separation of powers.
It is no accident that our Constitution requires in criminal
prosecutions a "speedy and public trial." The principles of liberty
and the accountability of government, at the heart of what makes
America unique, require no less. The Bush Administration's treatment
of American citizens it calls "enemy combatants" is nothing short of
un-American.
Second, foreign citizens held in Guantanamo should be given hearings
to determine their status provided for under Article V of the Geneva
Convention, a hearing that the United States has given those
captured in every war until this one, including Vietnam and the Gulf
War.
If we don't provide this, how can we expect American soldiers
captured overseas to be treated with equal respect? We owe this to
our sons and daughters who fight to defend freedom in Iraq, in
Afghanistan and elsewhere in the world.
Third, the President should seek congressional authorization for the
military commissions he says he intends to use instead of civilian
courts to try some of those who are charged with violating the laws
of war. Military commissions are exceptional in American law and
they present unique dangers. The prosecutor and the judge both work
for the same man, the President of the United States. Such
commissions may be appropriate in time of war, but they must be
authorized by Congress, as they were in World War II, and Congress
must delineate the scope of their authority. Review of their
decisions must be available in a civilian court, at least the
Supreme Court, as it was in World War II.
Next, our nation's greatness is measured by how we treat those who
are the most vulnerable. Noncitizens who the government seeks to
detain should be entitled to some basic rights. The administration
must stop abusing the material witness statute. That statute was
designed to hold witnesses briefly before they are called to testify
before a grand jury. It has been misused by this administration as a
pretext for indefinite detention without charge. That is simply not
right.
Finally, I have studied the Patriot Act and have found that along
with its many excesses, it contains a few needed changes in the law.
And it is certainly true that many of the worst abuses of due
process and civil liberties that are now occurring are taking place
under the color of laws and executive orders other than the Patriot
Act.
Nevertheless, I believe the Patriot Act has turned out to be, on
balance, a terrible mistake, and that it became a kind of Tonkin
Gulf Resolution conferring Congress' blessing for this President's
assault on civil liberties. Therefore, I believe strongly that the
few good features of this law should be passed again in a new,
smaller law – but that the Patriot Act must be repealed.
As John Adams wrote in 1780, ours is a government of laws and not of
men. What is at stake today is that defining principle of our
nation, and thus the very nature of America. As the Supreme Court
has written, "Our Constitution is a covenant running from the first
generation of Americans to us and then to future generations." The
Constitution includes no wartime exception, though its Framers knew
well the reality of war. And, as Justice Holmes reminded us shortly
after World War I, the Constitution's principles only have value if
we apply them in the difficult times as well as those where it
matters less.
The question before us could be of no greater moment: will we
continue to live as a people under the rule of law as embodied in
our Constitution? Or will we fail future generations, by leaving
them a Constitution far diminished from the charter of liberty we
have inherited from our forebears? Our choice is clear."
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