Act Now to Save the Constitution

by BRIAN J. FOLEY

Earlier this week, the Department of Homeland Security announced that the risk of another terrorist attack is "high." Nuclear power plants, skyscrapers, chemical plants, oil refineries, dams, bridges, seaports, airliners, trains, buses and bridges could be targets. Yet the most vulnerable victim of any future terrorist attack may be our Constitution.

Such is not mere speculation by conspiracy theorists but comes straight from recently retired U.S. Army General Tommy Franks, who field marshaled the U.S. wars against Afghanistan and Iraq. In a lengthy interview in this month’s Cigar Aficionado, Franks painted a picture of what he called "the worst thing that can happen in our country": a terrorist attack with WMD, a "massive casualty-producing event somewhere in the western world — it may be in the United States of America — that causes our population to question our own Constitution and to begin to militarize our country in order to avoid a repeat of another mass-casualty-producing event. Which, in fact, then begins to potentially unravel the fabric of our Constitution." As a result, Franks said, "the western world, the free world, lo! ses what it cherishes most, and that is freedom and liberty we’ve seen for a couple of hundred years in this grand experiment that we call democracy."

General Franks’ view is chilling. When people so close to President Bush start discussing the death of the Constitution, the unthinkable becomes thinkable. Our Constitution is supposed to be inviolate, a necessity, not a luxury. Democracy is not a mere "experiment," especially one that should be halted by a terrorist attack.

Nevertheless, it’s easy to imagine that, after another attack, the Constitution will be impugned by right wing politicians and pundits as a "Bill of Rights for terrorists and traitors." The argument that we can’t afford, say, free speech or the right to counsel when cells of apocalyptic terrorists lurk in the shadows, could appeal to a shell-shocked public. People will demand action. Granting the government broader police powers, and the "sacrifice" of freedom that such a grant entails, could seem like an almost pietistic response: we must give something up to get what we want; we have too long had too much wealth, too many freedoms.

It’s so easy to imagine such a response because it already happened, after September 11. The Bush Administration’s attack on the Constitution, the USA PATRIOT ACT, was rubberstamped by Congress. Many members had not even read it, but all feared appearing, as Attorney General Ashcroft warned, to "aid the terrorists." That Congress could give into such rhetoric shows the power of the fear that gripped the U.S.

It’s doubtful, in any case, that unraveling our Constitution can protect us from terrorists. As we now know, the 9/11 attacks could have been thwarted with information the government had at that time. And it’s hard to see how detaining Jose Padilla, the alleged "dirty bomber," without letting him talk to lawyers or challenge evidence against him, makes us any safer than if the Bush Administration respected his legal rights. Moreover, terrorism seems to thrive in countries that are not free — think Saudi Arabia, think Pakistan, think Russia. Taking freedom away from Americans could even spur some of them to respond violently.

Imagine giving up our freedom for security, but getting no security? That’s not even a trade-off — it’s wholesale surrender. Without these freedoms, We the People won’t be able to participate in or question what our government is — or isn’t — doing to protect us. As we saw with the invasion of Iraq — which appears to have done nothing to prevent terrorism but actually may have increased the risk (as the current "Code Orange" may reflect) — it’s easy for our leaders to lose focus.

What can we do? Given the speed with which the USA PATRIOT ACT was enacted after September 11, 2001, waiting until after an attack to protect our Constitutional rights will be too late. We must mobilize now to:

– Popularize the idea that the Bush Administration has a duty to protect us from future terrorist attacks. If an attack occurs, Americans should stand ready to blame, in part, where appropriate, this Administration — not the Constitution.

– Post the Constitution on websites and publish it in newspapers — to be plastered on cars, front doors, office cubicles. Pile copies in stores and restaurants. Leave it in hotel rooms, like the Gideon’s Bible. Distribute little flags of the Constitution for car antennae. Hand out t-shirts. Make the Constitution as ubiquitous as the flag became after 9/11.

– Campaign for the idea that "What Makes America Great is Our Constitution." MoveOn, Common Cause, the ACLU and others could build on the work they have been doing and start this educational campaign, which might include short explanations of each Constitutional freedom. Few Americans have ever read this wonderful document.

– Repeal the USA PATRIOT ACT. Already, based on citizen initiatives, three states (Alaska, Hawaii, and Vermont) and more than 100 cities, towns and counties, have rebelled, voting not to enforce the Act within their borders. We should take another step and declare all of our towns, cities, counties and states "Constitution Zones."

– Make protecting our Constitution an issue in all 2004 political campaigns. Demand that candidates pledge to uphold it. Indeed, remind all government officials that, upon taking office, they pledged to protect and uphold the Constitution. Make clear that we won’t let officials tread on our cherished freedoms.

– Plan now to march boldly for civil and human rights after any terrorist attack. It’s always easy for governments to silence and detain a few dissenters. We need to make rounding up freedom-loving Americans harder than herding cats.

Unfortunately, protecting against terrorist attacks is beyond the control of most of us. Protecting our Constitution, however, is a job for us all.

BRIAN J. FOLEY is a professor at Touro Law Center in Huntington, NY. He can be reached at: BrianF@tourolaw.edu.

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