If We Lose the Constitution, Who Wins Then?

Nat Hentoff, writer for the Village Voice and syndicated columnist, is one of the nation's staunchest defenders 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 The House, including 113 Republicans and a majority of Democrats, recently repealed a key provision of the Patriot Act, the so-called "sneak and peak provision" that allowed the FBI to go into your house without your knowledge or permission,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 rights 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 he 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 people's. 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 Comey has said it explicitly and bluntly in referring to 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 duties." 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.

Beside the issue of enemy combatants, what are the other examples you would use of the worst abuses of power of this administration?

There are so many! But let me start with the newest one -- Administrative Subpoenas. On September 9, Rep. Tom Feeney (R-FL) introduced HR 3037, the "Antiterrorism Tools Enhancement Act of 2003." Feeney himself called it "the most remarkable expansion of investigative powers since 9/11," This bill would allow any federal agency, including the FBI, to subpoena your personal records without going to court! They could, without any justification, require your personal records, including medical and travel records, from you personally or from third parties -- your school or your doctor. If they get them from a third party, they don't even have to tell you! You may never know that what's left of your privacy has just been diminished even more .

My sense, and I could be wrong, is that because there has been so much opposition, congress is a little more reluctant to pass these things. But we will see. I just wish there was more media attention on these matters. Ask almost anyone -- college student, high school student, workers, professionals: What is an administrative subpoena and what does the President want to do with it? I bet none of them would know the answer.

The Bill of Rights Defense Committees have been popular in some unlikely places. What do you think accounts for this?

The BORDCs have spread to every area of the country, from large cities to small conservative, working class towns. The most recent place is Tonasket, a small conservative town near the Canadian border. The authors of these resolutions are libertarians, conservatives, radicals, and progressives. The public relations department at the Justice Department says these are college towns and liberals. But they're wrong. I think the BORDCs reflect the changing mood of more of the country, a mood that is increasingly suspicious of abuses of government power.

Beside the BORDCs, what do you think of as the most effective ways of defending the Bill of Rights?

To begin with, those towns and cities that don't have BORD should organize them. They can do so through the Web site. But you can also put pressure directly on your own members of Congress. They pay attention to personal letters. They also pay attention to newspaper letters and editorials. It is crucial to get this message out.

This is part of fighting terrorism. If we lose the constitution, who wins then?

How are the current assaults on civil liberties different from those in the past, say during the Second World War? Is it worse now, and if so, how?

Not until now, has any administration had the technological capacity to find out what ALL of us are doing and to track all of our personal information. Technologically, has changed everything on two fronts. It has increased the capability of what terrorists could do to us but it has also increased the capability to attack civil liberties.

It's remarkable to me how much people are fighting for their liberties now. Woodrow Wilson (two years before he forgot his own words and practically suspended the First Amendment during the First World War) said: "Liberty has never come from the government. Liberty has always come from the subjects of the government. The history of liberty is a history of limitations of government power, not the increase of it." He said this Sept. 9, 1912. Perhaps people could send it to Ashcroft!
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