Flipping Off Bush on Civil Liberties

By Noah Leavitt, AlterNet. Posted October 27, 2004.

As the election draws near, discussions of civil liberties have all but disappeared from the public discourse. Earlier questions about balancing civil liberties and national security seem to have been replaced by both candidates’ need to prove that they are the toughest candidate possible, regardless of the consequences for Americans’ precious civil liberties. But there are still important differences between the two men.

Bush and Cheney tell us that Kerry voted for the USA PATRIOT Act but now criticizes it. Kerry’s defense has been that as he has acquired more information about the law, he has rethought his understanding, which may cause him to appear as if he is changing his position. That answer may be accurate, but it does not get at the heart of the problems with the administration’s approach to civil liberties. If Kerry had wanted to be on the offense, rather than the defensive, he could have noted that almost every major sector of U.S. judicial, political, and civil society has flipped President Bush’s laws and practices that touch on civil liberties protection.

Really, President Bush’s entire record on civil liberties is a flop.

Flipping Bush in the Courts

Federal courts have taken the lead in flipping Bush’s civil liberties agenda. Take, for example, Mr.Yaser Hamdi.

Hamdi was the subject of an important U.S. Supreme Court decision this past summer. There, the majority of the Justices found that the Bush administration had been unconstitutionally holding Hamdi as an ‘enemy combatant’ without charging him with any crimes, and without giving him access to his court-appointed lawyer or to the U.S. judicial system to review his complaints.

The Supreme Court ruled 8-1 against the administration’s arguments, completely flipping the White House’s claims that it could treat American citizens without regard to the Constitution.

Last month, Hamdi returned to Saudi Arabia. He was released in exchange for his agreeing not to bring claims against the United States for injuries suffered while imprisoned in Virginia and South Carolina.

Hamdi is but one example of a rapidly growing string of court decisions flipping the Bush’s problematic policies because they violate basic constitutional rights.

As attorney Elaine Cassel has recently pointed out in her new book,The War on Civil Liberties, the Bush administration has followed a predictable and increasingly failing pattern in prosecuting alleged terrorists: it makes dramatic, highly public allegations that distort the facts. It then accepts pleas to lesser charges in exchange for prison sentences that are unusually harsh for those lesser charges. Then it claims credit for “winning the war against terrorism.”

The Administration tried this in Detroit, where a year ago, Attorney General John Ashcroft boasted that he had won his major court victory in the war on terror by prosecuting a suspected terrorist sleeper cell. Yet, we recently learned in the New York Times that the prosecution was no victory at all – it was a farce, and one engineered by the highest levels of the Justice Department. Not only that, but in late August, the DOJ submitted a remarkable memorandum to federal judge Gerald Rosen in Detroit, admitting that its prosecution had been riddled with a pattern of mistakes and oversights.

This “victory” deserved to be flipped, and Judge Rosen did exactly that.

U.S. courts are even beginning to flip the almighty USA PATRIOT Act – the cornerstone of Bush’s civil liberties platform. For example, in January, a federal district court in California declared unconstitutional a section of the Act that prevented providing material support for groups accused of being terrorists because it was overly broad and vague and could apply to all kinds of non-terrorist groups.

More recently – in fact, just before the first presidential debate – a federal judge in New York struck down a major surveillance component of the PATRIOT Act that gave the FBI extraordinary power to demand information from companies without needing to obtain a court order. Frighteningly, that section also prevented recipients of the letters from ever revealing that they received the FBI demand for records. Judge Marrero wrote that such “all-inclusive sweeps” for information “had no place in our open society.”

Noah Leavitt is an attorney who writes frequently on civil liberties and human rights issues. He can be contacted at nsleavitt@hotmail.com.

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