If Americans win a war (not just against Saddam Hussein but the longer-term struggle) and lose the Constitution, they will have lost everything. —Lance Morrow, Time, March 17
On March 18, the Associated Press reported that at John Carroll University, in a Cleveland suburb, Justice Antonin Scalia said that “most of the rights you enjoy go way beyond what the Constitution requires” because “the Constitution just sets minimums.” Accordingly, in wartime, Scalia emphasized, “the protections will be ratcheted down to the constitutional minimum.”
I checked with the Supreme Court for a text of this ominous speech and was told Scalia didn’t use a text that night, but the quotation appeared to be accurate. I said, would Justice Scalia let me know? My question was relayed, but I’ve heard nothing since.
Most of the radical revisions of the Constitution that I and others have been writing about will ultimately be ruled on by the Supreme Court. Scalia indicates he will come down on the side of Bush and Ashcroft. A few days after the terrorist attacks on the World Trade Center and the Pentagon, Justice Sandra Day O’Connor said that as a result, we would have to give up some of our liberties. That’s two of nine justices we are not likely to be able to depend on.
And in his 1998 book, All the Laws but One: Civil Liberties in Wartime (Knopf/Vintage), the chief justice of the United States, William Rehnquist, admiringly quoted Francis Biddle, Franklin D. Roosevelt’s attorney general: “The Constitution has not greatly bothered any wartime president.” And Rehnquist himself, who will be presiding over the constitutionality of the Bush-Ashcroft assaults on the Constitution, wrote in the same book:
“In time of war, presidents may act in ways that push their legal authority to its outer limits, if not beyond.” (Emphasis added.) And writing of Lincoln’s suspending habeas corpus during the Civil War, Rehnquist said, “It is difficult to quarrel with this decision.”
Reacting to Rehnquist’s deference to the executive branch in previous wars, Adam Cohen, legal affairs writer for The New York Times, wrote: “The people whose liberties are taken away are virtually invisible” in the pages of Rehnquist’s book.
Meanwhile, in an invaluable new report by the Lawyers Committee for Human Rights, “Imbalance of Powers: How Changes to U.S. Law and Policy Since 9/11 Erode Human Rights and Civil Liberties” (available by calling 212-845-5200), a section begins: “A mantle of secrecy continues to envelop the executive branch, largely with the acquiescence of Congress and the courts. [This] makes effective oversight impossible, upsetting the constitutional system of checks and balances.”
So where is the oversight going to come from? If at all, first from the people pressuring Congress—provided enough of us know what is happening to our rights and liberties. And that requires, as James Madison said, a vigorous press, because the press has been, he noted, “the beneficent source to which the United States owes much of the light which conducted [us] to the ranks of a free and independent nation.”
But the media, with few exceptions, are failing to report consistently, and in depth, precisely how Bush and Ashcroft are undermining our fundamental individual liberties.
For example, in writing here about the Justice Department’s proposed sequel to the Patriot Act (titled inoffensively the Domestic Security Enhancement Act), I noted that it had been kept secret from Congress. A week before it was leaked by an understandably anonymous member of Ashcroft’s staff, a representative of the Justice Department even lied to the Senate Judiciary Committee about its very existence.
A few sections in that chilling 86-page draft were briefly covered in some of the media. But as I predicted after providing more details here (“Ashcroft Out of Control” and “Red Alert for the Bill of Rights”), these invasions of the Constitution were only a one- or two-day story in nearly all of the media.
How many Americans know that if the bill is passed (and Bush certainly won’t veto it), they can be stripped of their citizenship if charged with giving “material support” to a group designated by the government as “terrorist”? Sending a check for the outfit’s lawful activities—without knowing why it landed on Ashcroft’s list—could make you a person without a country and put you behind bars here indefinitely. As Chief Justice Earl Warren said, “you lose the right to have rights” when you lose your citizenship.
How many Americans know that the FBI can get a warrant from the secret Foreign Intelligence Surveillance Court and go to a library or bookstore to find out what books you read or borrow if you are somehow, according to the FBI, connected to “terrorism”?
In the First Amendment Center’s “Legal Watch” newsletter (March 11-17), Charles Haynes writes that “a warning sign greets patrons entering all 10 of the county libraries in Santa Cruz, California.” It says: “Beware, a record of the books you borrow may end up in the hands of the FBI. And if the FBI requests your records, librarians are prohibited by law from telling you about it.” The message to the readers ends: “Questions about this policy should be directed to Attorney General John Ashcroft, Department of Justice, Washington, D.C. 20530.”
Librarians—and bookstore owners—are also forbidden by this section of the law from telling the press of these visits by the FBI to inform John Ashcroft of what people on the list of suspects are reading.
I’ve checked with the American Library Association and am told that very few other libraries are warning their patrons to be cautious about which books they ask for. Shouldn’t the press spread the news of this risk more widely?
And I’ve seen little in the media about a bill, “The Freedom to Read Protection Act of 2003,” introduced in the House by Bernie Sanders (Independent, Vermont) that prevents the government from “searching for, or seizing from, a bookseller or library . . . materials that contain personally identifiable information concerning a patron of a bookseller or library.” Under the bill, a higher standard than mere FBI suspicion will be required.
How many of you know the answer Assistant Attorney General Daniel J. Bryant sent Democratic senator Patrick Leahy of Vermont about our expectation of privacy in bookstores and libraries?
“Any [such] right of privacy,” says the Justice Department, “is necessarily and inherently limited since . . . the patron is reposing that information in the library or bookstore and assumes the risk that the entity may disclose it to another.”
Have you ever assumed that the librarian or bookstore owner has a right to bypass your First Amendment right to read what you choose by telling “another” (the FBI) whether you read, for example, the Voice? Senator Leahy’s office made that Justice Department letter available to the press. Have you seen it before now?
“Ashcroft’s New Ally: Senator Schumer Pushes to Make Covert Surveillance Easier” by Chisun Lee
This article from the Village Voice Archive was posted on April 15, 2003