Who’s Winning the War on Civil Liberties?

On September 15, 2001, President Bush declared a “war” on “terror.” It will be, he said, “a conflict without battlefields or beachheads.” Actually there have been battlefields and beachheads. First in Afghanistan in 2001. Then, in 2003, the absence of weapons of mass destruction had Bush changing his tune on Iraq–it now was the latest front in the war. Within a few weeks after the September 11 attacks, another war was declared. It was a war on civil liberties fought, ostensibly, in aid of the war on terror. In order to win this ideological war with unconventional soldiers, the Bush Administration, led by Attorney General John Ashcroft, set out to change the laws so as to meet what it said was exigent demands for this war that would, in Bush’s words, last a long time.

Like the war on terror, the Bush Administration’s war on civil liberties was undertaken in the name of national security and in defense of “freedom.” The individual victims are diverse-Americans, legal aliens, illegal. Institutional victims include Muslim charities, organizations that support Palestinians, and activist mosques. The greater victim, however, is the Constitution and the rule of law. It can no longer be said that we have three strong, independent branches of government-the executive, the legislative, and the judicial. The founding fathers, of whom much is written these days, planned three co-equal branches of government precisely to deter the power of a despotic President. But rather than protect us from an over-zealous executive branch, the Congress and the courts are providing Bush important ammunition by way of legislation. Hundreds of new laws and regulations have come to pass, hundreds of old laws have been amended, and the most massive government reorganization since the New Deal put into place in the name of fighting “terror.” Many federal judges, including more than 150 Bush appointees who were picked because of their loyalty to the President and their likely tendency to side with him in legal battles, stand ready to thwart efforts to curtail the Administration’s efforts to slash civil liberties.

The Administration has done a great public relations job selling the fact that some freedoms must be sacrificed in the name of national security. From the day the war on terror was declared, Ashcroft has been labeling those who criticize his tactics as being soft on terrorism. The ultimate branding coup came with some staffer dreaming up the acronym “PATRIOT” for the law that makes a mockery of many constitutional protections. To be against the Patriot Act makes one, well, “un”patriotic. Some aspects of the war on civil liberties harkens back to a time during World War II when fear and claims of national protection led to the internment of Japanese American citizens. The rounding up of thousands of immigrants immediately after September 11 and the imprisonment of hundreds of them for lengthy periods of time recall a dark chapter in our country’s history, a chapter which, it is important to remember, was held to be perfectly legal by the U.S. Supreme Court.

The Supreme Court of the U.S., as of this writing, has yet to hear any legal challenges to the powers President Bush has asserted in the name of the war on terror or challenges to the Patriot Act. It has granted the appeal of some of the Guantanamo Bay prisoners who wish to challenge Bush’s detention of them through the ancient writ of habeas corpus. It has not yet announced if it will hear the appeal of American citizen Yaser Hamdi, held as an enemy combatant for almost two years without being charged with any offense and without access to an attorney. The full panel federal court of appeals for the Fourth Circuit (in Richmond, Virginia) said Bush could do as he pleased with Hamdi. The government will certainly appeal a recent federal appellate court ruling concerning American citizen Jose Padilla, who originally was detained as a material witness to a grand jury investigation and subsequently declared an enemy combatant and transferred to the same military brig with Hamdi. The Second Circuit Court of Appeals ruled in December that Padilla had to be released–that there was no basis in law for Bush’s detention of him and that the President can only act pursuant to law.

It is hard to say what the Supreme Court will do with the cases it hears. Justices Sandra Day O’Connor and Ruth Bader Ginsburg, virtual ideological opposites on the court, have joined moderate Justice Anthony Kennedy in making public statements that Americans may have to give up some liberties in order to secure freedom for ourselves, our children, and their children. Presciently, prior to September 11, Chief Justice William Rehnquist wrote a book about the powers of the president in a time of “war”-and those powers are virtually without limit or question and include suspension of the writ of habeas corpus (as was done by President Lincoln during the Civil War). The “great” writ, as it is called, is the basis for Padilla, Hamdi, and the Guantanamo Bay prisoners’ petitions for judicial review of their lawless detentions.

With a compliant, even complacent Congress, the Supreme Court is our only hope to win the war on civil liberties. Will it show its independence and vote with the law, or go with politics and hand big wins to the man they made President? In a few months, we will know. Now, we can only watch and wait.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net