It is difficult for me to fathom why so many Americans, and especially conservatives, seem so unconcerned about the abrogation of our Constitutional rights since the inauguration of George W. Bush. Aren’t conservatives supposed to be the ones who are so concerned about “law and order”? Don’t they understand that the foundation of our nation’s laws is provided by our Constitution?
It seems that Constitutional rights are little more than an abstract concept to many of today’s conservatives; and the abrogation of Constitutional rights in our country are seen by them as something that is not likely to affect them personally. George Bush himself has
proclaimed that the Constitution is “just a goddamned piece of paper. And indeed, that’s what it has become under his leadership.
In this post I discuss why I consider this issue to be of great importance – to myself and to my nation. It is addressed to those who are not very concerned about our loss of Constitutional rights during the Bush Presidency OR to those who
are concerned about it and who might possibly find this discussion useful for arguments with those who are not.
Some general comments about the origins and purpose of our ConstitutionOur nation was conceived as a reaction against what our Founding Fathers considered to be a tyrannical regime. As such, our Constitution is profoundly anti-monarchical, in other words designed to prevent the emergence of a dictator. Its authors recognized the potential for power to corrupt and for power to become concentrated in the hands of a chief executive – so they wrote into our Constitution many mechanisms to prevent that from happening. Chief among those mechanisms was the provision of balancing powers for the two other branches of government, especially the legislative branch.
The potential for dictatorships to arise is facilitated by the fact that during times of stress many people long for an authoritarian father figure to save them from what they fear. In that respect, those people who approve of George Bush abrogating our Constitutional rights in the name of protecting us against terrorism have much in common with the Tories (or Monarchists) of our Revolutionary period, who favored retaining a King, or the Germans of the 1930s who willingly allowed Hitler to become the dictator of their country so that he could better protect them against the many evils that he raged about.
These people have often proclaimed that “our Constitution isn’t a suicide pact”, as an argument for justifying its abrogation. But in their concern to have the emerging dictator protect them against the things they fear, they fail to consider the risks of turning their country over to a dictator. In their panic they look for any temporary solution that they, usually mistakenly, believe will protect them. And the consequences of that are likely to be catastrophic. Let’s consider some things that have been happening to our country over the past six and a half years.
The abrogation of our First Amendment rightsBy protecting our right to speech, to assemble, to practice our religion, and to petition our government, our
First Amendment protects us against punishment for expressing our opinions, regardless of how unpopular those opinions are. More than anything else, our First Amendment was designed to allow American citizens the freedom to know what their government is doing and to criticize it. Those freedoms are essential to democracy because when a government is allowed to operate in secret and without the risk of criticism, it tends to feel that it can do whatever it wants, without the risk of being held accountable. If people aren’t able to find out when their government does things that are contrary to their interests, then having the right to vote doesn’t mean very much because people won’t have the information needed to make their vote meaningful.
George Bush has denied us our First Amendment rights from the very first days of his administration. Even during his inauguration he denied the right of protesters to be heard by confining them to “
first amendment zones”. In doing this, George Bush denies the rights of millions of Americans to learn about the grievances that their fellow citizens harbor towards him.
He has repeatedly
denied government access to journalists who fail to tow his line; he ties up our airways, using tax dollars, with
government propagandists pretending to be real journalists; and he has even claimed the right to
imprison journalists who expose administration crimes to the public. In all of this, George Bush has prevented American citizens from learning about the issues that they need to know about in order for a democracy to function.
The abrogation of our Fourth Amendment rightsOur
Fourth Amendment protects our privacy by disallowing “unreasonable searches or seizures”. It does this by requiring that searches or seizures by government be preceded by specific warrants that are based upon probable cause.
George Bush’s
warrantless domestic spying program is a clear example of massive and repeated violations of our Fourth Amendment rights. Though Bush has repeatedly assured Americans that the program’s purpose is to “catch terrorists”, he has offered no evidence to that effect. If the Bush administration’s wiretapping of American citizens had a justifiable basis behind it, there should be no reason it couldn’t request warrants to conduct them. Though Bush claims that that would hamper his “War on Terror”, that claim is patently absurd, since the law allows the requesting of warrants to be retroactive. Furthermore,
knowledgeable sources have maintained that, though thousands of warrantless wiretaps per year have been ordered and conducted by the Bush administration, fewer than ten per year are justified by the constitutional standard of “reasonable cause” for suspicion.
My biggest concern about George Bush’s warrantless spying program is that he is using it to spy on his political opponents. It is clear that this is a major purpose of Bush’s refusal to abide by the law and our Fourth Amendment by obtaining warrants when he feels it necessary to spy on people. If his purpose was to fight terrorism, there would be no problem with obtaining a warrant.
Spying on political opponents is a great way to neutralize them and to consolidate one’s own political power. J. Edgar Hoover used this mechanism to retain power as FBI Director for many decades. So did Richard Nixon, and he was impeached for it. When power is used and consolidated in this manner we take a giant step towards dictatorship. It should be obvious that this is why George Bush insists on his right to illegally wiretap American citizens without obtaining warrants, even if actual evidence to that effect was lacking – which
it is not.
Abrogation of our Fifth and Sixth Amendment rightsOur
Fifth Amendment and
Sixth Amendment contain several provisions that are meant to ensure due process of law, or in other words, a fair trial prior to punishing an individual for an alleged crime, by taking away his or her life, freedom, or property. They do this especially by requiring a speedy trial, an impartial jury, the right to confront witnesses against oneself, and to be informed of the nature of the charges against oneself.
In its so-called “War on Terror”, the Bush administration has violated virtually every provision of our Fifth and Sixth Amendments. It is barely an exaggeration to say that our detainees in this so-called war
have no rights whatsoever. They are held indefinitely, and only a minute fraction of them have charges brought against them. They are not allowed to confront witnesses against them. They are not given access to counsel.
According to our own military, most of them are completely innocent. The whole idea of “innocent until proven guilty” is turned inside out by our administration’s repeated
public pronouncements on their guilt.
The only explanation I can think of as to why there isn’t more outrage against these crimes against humanity is that most people think that they don’t apply to them. Those people should think again. Our recently passed
Military Commissions Act gives George Bush the
authority to deem as an “unlawful enemy combatant” anyone who “engages in hostilities against the United States”. Given their tendency to
very broad definitions of hostilities, it is not unreasonable to think that George Bush and Dick Cheney would consider my writing of this article equivalent to engaging in hostilities against the United States.
What could be more oppressive than for a government to reserve and exercise the right to throw people into dungeons and keep them there indefinitely without a trial? Investigative reporter Stephen Grey estimates, in his book “
Ghost Plane – The True Story of the CIA Torture Program”, that 11 thousand men and boys have encountered such a fate in George Bush’s “War on Terror”.
I have heard people complain that liberals demand “special rights” for our prisoners at Guantanamo Bay and elsewhere. I have never heard anyone demand or even ask for “special rights” for those prisoners. But is it really too much to ask that they get a fair trial?
Abrogation of our Eighth Amendment rightsOur
Eight Amendment protects us against “cruel and unusual punishment”, including torture.
There is abundant evidence that torture of our detainees is widespread and routine, as documented by
Human Rights Watch,
Seymour Hersh,
Amnesty International, the
International Red Cross, and our own
FBI. Furthermore, the Bush administration has issued
memos affirming its right to torture our prisoners, and George Bush himself has appended a “
signing statement” to an anti-torture bill passed by Congress.
The Bush administration’s use of torture is similar to its abrogation of our Fifth and Sixth Amendment rights. Some people think it is ok to have these people tortured because it is only done to those who are guilty of heinous crimes. But it is the height of arrogance to make that claim when only a minute fraction of our prisoners have even been accused of and tried for a crime, and when so many of them have been found to be innocent of any wrongdoing even without the benefit of a trial.
The fact that Bush and Cheney sponsor and even demand a system like this says a great deal about what kind of men they are. If these men place any kind of moral restraints on their own behavior I’ve not seen evidence of it. I do not fool myself into thinking that they would hesitate to greatly expand their illegal torture system if they thought it would help in the consolidation of their power.
The violation of the separation of powers provided by our ConstitutionAs I noted above in this post, the provision of powers to our other branches of government was written into our Constitution as a check against a chief executive who attempts to consolidate power to the extent of becoming a dictator. The principle is known as “
the Separation of Powers”.
The power to enforce the laws of the land, and the authority given the President as Commander-in-Chief during war time are especially important to check and control because arbitrary enforcement of laws, which are especially prone to occur during time of war, are a notorious means of denying rights to vulnerable individuals. For that reason, our Founding fathers balanced those executive powers by giving Congress the sole power to enact laws and declare war.
But by appending “
signing statements” to more than 800 laws enacted by Congress – more signing statements that all 42 previous presidents combined have used – George Bush has arrogantly asserted his intentions not to be bound either by the rule of law in general or by the Separation of Powers provided in our Constitution. The
American Bar Association has said that it:
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