Flipping Off Bush on Civil Liberties

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 Earlier questions about balancing civil liberties and national security seem to have been replaced by both candidates’ need to prove that they are the toughest candidate possible, regardless of the consequences for Americans’ precious civil liberties.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.”

And more challenges are on the way. A federal court in Michigan is considering a challenge to another section of the Act that allows the FBI to obtain an order to force any organization or business to turn over any tangible evidence that could relate to a terrorism investigation. Such cases will provide additional opportunities for courts to flip additional sections of Bush’s problematic legislation.


Flipping Bush in the Executive Branch

The courts are not the only sector of society that are throwing out Bush’s civil liberties practices – it is happening within the President’s own administration.

Recall that more than 13,000 Arabs and Muslims were detained and deported since September 11. Often, they were not charged with any offense, their families were not informed, and they were denied access to counsel. And recall that not a single one was charged with a specific act of terror.

Rightly, the Justice Department’s own Inspector General has been highly critical of this racially tainted, misguided type of “justice.” In addition, the Inspector General – an Executive Branch employee – has criticized the Administration because these detainees faced awful conditions in jails across the country where they awaited their fates.

Yet, at the same time as the Bush administration has been rounding up thousands of Muslims without demonstrating that any of them have any connection to terrorism, it has also been severely curtailing a broader investigation of non-terrorism related crimes. According to a recent Justice Department study, the FBI's shift from a broad attack on crime to an intense focus on counter-terrorism has resulted in tens of thousands fewer investigations into “traditional” crimes since 9-11.

While that report did not specifically criticize the DOJ, given the miserable record that the Bush administration has demonstrated in prosecuting terrorism cases, one cannot help but question the effectiveness of such policies in keeping our country safe and secure.


President Bush’s Own Flipping

Of course, President Bush has a well-documented history of changing his mind on civil liberties and domestic security questions.

For example, he initially opposed the creation of a Homeland Security office because he did not want to federalize law enforcement. (In a debate with Al Gore on October 11, 2000, he said, “I believe in local control of governments. I think we need to find out where racial profiling occurs and say to the local folks, get it done.”)

However, when political pressure increased after 9-11 for more coordinated intelligence and law enforcement operations, Bush created a massive new federal department, giving it billions of dollars to centralize power within the federal level, combining 22 agencies and more than 180,000 federal employees.

Kerry Gives a Few Clues

Compared to way the current administration regards civil liberties and national security, Kerry’s evolving positions on issues must be seen in a different light.

The most frequently cited example, of course, is Kerry’s change of heart on the PATRIOT Act – by now, most Americans know that Kerry voted for the Act and made some supportive statements about parts of it.

For instance, several weeks after the September 11 attacks, during a speech on the Senate floor, Kerry said he was “pleased at the compromise we have reached on the antiterrorism legislation, as a whole.” And on Fox News that same week – before President Bush signed the legislation – Kerry said the Act “streamlines the ability of law enforcement to do its job. It modernizes our ability to fight crime."

Since then, Americans – among them Senator Kerry – have watched as the untrammeled use of the PATRIOT Act and other tools of the Bush Administration’s domestic war on terror have been used recklessly, and have been crashing and burning around us.

With three years of lessons learned, of massive news coverage detailing the horrors of the detention of innocent immigrants, of American citizens held as enemy combatants, of outsourcing “tough” interrogations to countries where torture is practiced freely, of Abu Ghraib, Kerry now criticizes certain parts of the PATRIOT Act.

Can anyone blame him? To continue to support the Administration’s domestic war on terror in the face of three years of overwhelming factual evidence of misuse and outright failures would be naïve and misguided.

It is true that Kerry recently told the American Bar Association’s Journal that he believes “some provisions of the PATRIOT Act—like the money laundering provisions—must be made stronger.” He added that, “Others—like the library and ‘sneak-and-peek’ search provisions—must be made smarter, to better protect privacy and freedom while allowing our government to do everything necessary to track down terrorists and defend America.”

Here are some questions those concerned about civil liberties should ask when choosing a Presidential candidate next week:

Which candidate is more likely to call for undermining the Bill of Rights by holding U.S. citizens incommunicado and without access to the courts?

Which candidate would ask residents to spy on each other, as the administration’s neighbor-spying-on-neighbor Terrorism Information and Prevention System (TIPS) program would have done?

Which candidate would instruct federal courts to close court hearings on routine immigration matters, as the Justice Department ordered in late 2001?

Which candidate would be more likely make arrangements for people in the U.S. who are potential suspects of terrorist-related crimes to be covertly transferred to countries that permit torture, in order to obtain information?


Flipped by the American electorate

If a sample of resolutions condemning the PATRIOT Act is any indication, a steadily growing portion of the American electorate appear more and more likely to flip Bush’s civil liberties agenda.

At the time of this writing, more than 358 communities in 43 states, including four state resolutions, covering about 55 million people, have passed resolutions and other public statements expressing concern about and opposition to the highly intrusive provisions of the PATRIOT Act, or the convoluted, rushed, secretive process by which it zoomed through Congress in the first six chaotic weeks after the September 11 attacks.

Not surprisingly, this list includes nearly all major American cities. Yet, it also includes such “hotbeds of liberalism” as Lincoln, Nebraska; Tumwater, Washington; Boone, North Carolina; and Jackson, Mississippi – places in solidly Republican territory that have seen the perils of Bush’s domestic security policy which treats the Constitution as a mere option to be ignored at the President’s whims.

The federal courts and the Department of Justice’s own Inspector General have overturned aspects of the administration’s policies that they say are direct violations of American’s civil liberties. On November 2nd, citizens will have a chance to say for themselves what they think of the civil liberties agenda of the past four years.

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