If We Lose the Constitution, Who Wins Then?

Nat Hentoff is a columnist for the Village Voice and syndicated, has been one of the nation’s staunchest defender of the Constitution and civil liberties. He is an articulate and impassioned speaker with an inspiring knowledge of constitutional history. I spoke with him about Ashcroft’s "victory tour," the administration’s unprecedented attack on civil liberties, and the inspiring Bill of Rights Defense Committees that have sprung up around the country. Hentoff is the author of the new book,The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press).

Your book was written before Ashcroft’s Patriot Act tour. What is your impression of the tour so far and how does it fit into the attack on the Bill of Rights?

Ashcroft’s "Victory Tour," as he calls it, is very revealing. Although 159 towns and cities and 3 state legislatures have created Bill of Rights Defense Committees (BORDCs) and passed resolutions opposing the Patriot Act, Ashcroft did not visit any of these towns or speak to any public audience beside selected groups of law enforcement officers. By failing to meet with any of the people that had concerns, the tour showed the administration is playing defense.

I don’t think they realized there are so many BORDCs and that they are so critical. There is a rebellion, not just among citizens in these towns, but also in Congress and even among Republicans. The House, including 113 Republicans and a majority of Democrats, recently ended the funding for a key provision of the Patriot Act, the so-called "sneak and peak provision" that allowed the FBI to go into your house without your knowledge or permission, poke around your papers and your computer, and not even inform you that they’d been there for 90 days. People across the political spectrum have been voicing their concerns.

One of the key issues discussed in your book is the question of enemy combatants. Does the Bush administration have the constitutional right to declare U.S. citizens enemy combatants, and, if not, how are they getting away with it?

What Bush has done is the most radical destruction of civil liberties this country has seen. George W. Bush, without consulting with the courts or congress, decides who is an enemy combatant. Currently two U.S. citizens, Jose Padilla and Yasir Hamdi, are being held indefinitely on military brigs, without charges or access to lawyers. This has never happened before.

The issue of enemy combatants is currently before the Second Circuit Court of Appeals in New York. The most remarkable brief on the constitution that I have ever seen was recently sent to the Second Circuit. It was signed by judges and lawyers from all political backgrounds--Republicans, Democrats, Conservatives, and Libertarians--and it said that Bush is turning the rule of law on its head. This will likely go to the Supreme Court, and if it upholds Bush, it means the President can take any citizen off the streets of America and hold them indefinitely. In effect, anyone could be picked up and disappear.

Given how frightening this possibility is, why do you think there hasn’t been more of a public outcry against the erosion of civil liberties?

Most Americans are not very aware of their own constitutional rights and liberties and therefore they’re not aware of other peoples. When the media told the story of Padilla and Hamdi, and a few places did tell this story, they told it on the 24 hours news cycle, without enough sustained coverage. If people knew that the U.S. president has taken unto himself this extraordinary power, I think most people would be very upset . U.S. attorney James Coney has said it explicitly and bluntly, speaking of the President as Commander-and-Chief: "A court of the United States has no jurisdiction to enjoin the President in the performance of his official duies." does not have to answer to anybody." If people knew that the President--who is supposed to be accountable not only to the other branches of the legislature but to the people--felt this way and was acting this way, I think they would be very concerned.