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Joining the War Over the Constitution

Two months after the 9/11 attacks, 25 teachers, retirees, lawyers, doctors, students, and nurses—none of them professional civil libertarians—formed the Bill of Rights Defense Committee in Northampton, Massachusetts. They knew the Bush-Cheney war on the Constitution had begun.

That October 25, the White House had terrified Congress into rushing the Patriot Act into law. In the Senate, only Democrat Russ Feingold—accurately predicting the continuous rape of the Bill of Rights—voted against it, disobeying Democratic leader Tom Daschle, who desperately wanted to avoid the Republicans tarring the Democrats as unpatriotic.

The unintimidated 25 citizens of Northampton convinced more than 1,000 of their neighbors to sign a petition that, by the following May, motivated the Northampton City Council to unanimously pass a resolution mandating local police to inform the people when federal agents of Attorney General John Ashcroft were enforcing the Patriot Act in the town and its environs.

In the spirit of this nation’s founders, the resolution boldly directed: “Local law enforcement continues to preserve residents’ freedom of speech, religion, assembly, and privacy; rights to counsel and due process in judicial proceedings; and protection from unreasonable searches and seizures even if requested or authorized to infringe upon these rights by federal law enforcement acting under the . . . Patriot Act or orders of the Executive Branch.”

General Ashcroft was later to tell the House Judiciary Committee: “The last time I looked at September 11, an American street was a war zone.” Anyone on those streets could be the enemy.

As additional Massachusetts towns and the city councils of Ann Arbor and Denver took Northampton’s lead and passed similar resolutions, BORDC founder and director Nancy Talanian put together a masterful website to synchronize a growing national movement—rightsanddissent.org (on which I click every morning to find out the cities, towns, and states creating new committees)—and news stories from around the country on further administration raids on the Constitution. By now, more than 400 cities and towns—and eight states—have passed BORDC resolutions and continue to monitor local and state police and their congressional representatives.

This truly grassroots movement is a 21st-century revival of the Committees of Correspondence started in Boston by Samuel Adams and the Sons of Liberty in 1767, which became a news network throughout the colonies. Those committees reported the growing abuses by the King’s transplanted governors, customs officials, and troops of the Colonists’ individual rights, which were rooted deep in English history. In a 1773 secret meeting in Virginia, Thomas Jefferson, Patrick Henry, and other rebels committed a hanging offense by starting such a committee in their state.

In 1805, an American historian of the rise of the revolution, Mercy Otis Warren, wrote: “Perhaps no single step contributed so much to cement the union of the colonies, and the final acquisition of independence, as the establishment of the Committee of Correspondence.”

As I have often reported here over the years, the BORDC, while not igniting a revolution, has strengthened the resistance—locally, regionally, and nationally—to our own king’s war on the Constitution. And some references in the Congressional Record show that members of Congress are aware of BORDC members among their constituents.

But the war on the Constitution continues. While the Patriot Act has been somewhat watered down, and there are continuing American Civil Liberties Union lawsuits to bring deeper changes, much of the Patriot Act—not to mention a noxious stream of Bush executive orders—keeps the war on the Constitution thriving. For example, I’ll soon be reporting on efforts by Attorney General Michael Mukasey and FBI Director Robert Mueller to return to J. Edgar Hoover’s methods, with expanded FBI power to begin terrorism investigations of Americans without any evidence of wrongdoing.

Talanian, as the BORDC’s equivalent of Paul Revere, says: “These years of grassroots action to restore constitutional protections have led to increased oversight . . . but they have fallen short of the full restoration of constitutional rights and liberties.”

Therefore, a new BORDC “People’s Campaign for the Constitution” will “continue local organizing with a focus on the lawmakers in Washington—rather than city and county councils and state legislatures.” As Talanian emphasizes: “The new president, new Congress, and the 2009 expiration of Patriot Act provisions offer the best opportunity we have had . . . to change the direction our nation is taking.”

In a future column: the structure, organization, and resources (including a toolkit and database) of this BORDC rescue of the Constitution, as well as ways to get involved. Meanwhile, there is now available an essential, concise, and accurate blueprint, Talanian points out, “of how key anti-terrorism laws and policies enacted since September 11, 2001, affect Americans’ constitutional rights.”

The sizable booklet, The “War on Terror” and the Constitution, is organized around the Bush laws and policies—corresponding to sections of our Constitution—that directly affect our lives and those of others. Shown on each page are the breakdowns of what the Bush Tories have done to each part of the Constitution: For example, “Fourth Amendment: Right to Privacy: the Provisions of the Patriot Act/What They Say, What They Change/How Each One Can Affect You” is included as well as illustrative stories of the sneaky ways the Act is being used.

Take Section 206 of the Patriot Act: roving wiretaps by the FBI under the Foreign Intelligence Surveillance Act. How can that affect you? “There is no requirement that the FBI tap the line only if it knows that the intended target is present at the location . . . [this] allow[s] conversations of innocent bystanders who may be using the device to be wiretapped.” At their office. Or anywhere they use a phone or a computer.

Also included are key Supreme Court rulings on these laws and executive measures, with detailed notes that lead to more information. This publication should be in every place of learning, including graduate schools, and, as the new Congress begins, on the desk of every member.

To get a copy ($3, and wholesale prices for quantities), contact the Bill of Rights Defense Committee at info@rightsanddissent.org or 413-582-0110. You can order one online at rightsanddissent.org or download a printable order form at rightsanddissent.org. It’s a sequel to Thomas Paine’s 1776 pamphlet, “Common Sense.”

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Consider the Constitutions of Obama and McCain as You Choose Sides

On the blessed day when George W. Bush leaves office, he will have left behind a largely hidden parallel government within this nation, a rogue apparatus that allows a President to be the law, with a holy patriotic mission to ignore the Congress and the courts when decisive action is needed.

And if the other branches of the visible government act up—brandishing the separation of powers inscribed in the Constitution—this president-czar works, mostly in secret, to maintain his authority.

The next president, to restore the Constitution and shred the Bush legacy of shadow law—and, in the process, repair our deeply scarred reputation in the world—must begin to root out the inner machinery of Bush’s parallel government.

But once he’s elected, who is more likely—McCain or Obama—to avoid being seduced by the intoxicating powers of the Oval Office? As you leap to an answer, keep in mind the cautionary historical warning by Oberlin College professor David Orr in “Refitting the Presidency to the Constitution” (CommonDreams.org, May 18): “Unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand. The expanded powers of one president typically are carefully guarded by their successors . . . Republican or Democrat.”

Let us suppose that Barack Obama is the next president and is impelled to extirpate the seeds of tyranny that Bush, Cheney, et al. have planted.

The odds are strong that the Democrats will then have larger majorities in both branches of Congress. But the odds are also strong that the current Democratic leadership—Harry Reid and Nancy Pelosi—will remain in place. Neither has shown sufficient interest, let alone the passion, to resuscitate the Constitution.

Would Obama, after only a short time in the Senate, have the sustained determination, leverage, and organizing ability necessary to bypass Reid and Pelosi and create a new majority for the Constitution in both houses?

Let us further suppose that Obama has the grit to accomplish that, energizing even Democrats without safe seats so that they will spend less of their time raising money for their next campaign. Obama’s resurrection of our individual liberties, however, can still be overruled by a Supreme Court dominated by Chief Justice John Roberts and his conservative allies on the bench—Samuel Alito, Clarence Thomas, and Antonin Scalia—with the uncertain swing vote of Anthony Kennedy.

And here is a crucial difference when considering the two candidates: The new president may well have several vacancies on the High Court to fill during his term, particularly if re-elected. Bill of Rights protector John Paul Stevens is 88, still plays tennis, and long may he do so. Another part of the so-called “liberal” bloc, Ruth Bader Ginsberg, is 75. Stephen Breyer is 69.

David Souter, 68, though expected to join the court’s right wing when George H.W. Bush nominated him, has proved an infuriating disappointment to conservatives. Souter replaced Justice William Brennan, an inspiring believer in the Constitution as a living, evolving guarantor of personal liberties. After retirement, Brennan befriended and influenced his successor. But the ungregarious Souter doesn’t enjoy Washington and its social life: Unlike the other justices, he doesn’t spend his summers teaching in foreign climes, preferring instead his rural New Hampshire home. Brennan enjoyed being the chief dissenter on the Rehnquist court, but if the Roberts court turns even more conservative, Souter might not stay.


John McCain has already given us his models for filling vacancies on the Supreme Court: Roberts, Alito, and the late William Rehnquist.

None of these men displayed much alarm over the Bush-style authoritarianism that has led to the establishment of CIA secret prisons and other “special powers”; the ever-expanding surveillance of Americans at home, including warrantless eavesdropping on our e-mails and phones; and the summary closing of our courts any time the administration invokes the “state secrets” privilege that prevents terrorism suspects from even mounting a defense.

In this month’s National Review Online, Douglas Holtz-Eakin, a primary adviser to John McCain, makes it entirely clear that, as president, McCain would shape the Supreme Court with appointments intended to uphold the vast reach of Bush’s so-called unitary executive.

Appropriately, that letter to the National Review expounding McCain’s views— one that the senator himself has not disavowed—was spread around the world on the front page of the June 6 New York Times by Charlie Savage, who won a Pulitzer Prize for his work in The Boston Globe exposing Bush’s abundant use of “signing statements” to exempt his administration from the laws he’d just signed. To quote Savage’s piece, McCain believes “that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international calls and e-mails without warrants, despite a 1978 federal statute that require court oversight of surveillance.” (Emphasis added.)

Barack Obama voted, as a U.S. senator, against the confirmation of Roberts and Alito, saying of the latter that his record revealed “extraordinarily consistent support for the powerful against the powerless” and “for an overreaching federal government against individual rights and liberties.”

Obama, moreover, has been mocked by such conservative columnists as Linda Chavez for having said—in the spirit of Justices Brennan and William O. Douglas—that he would be guided in his judicial nominations by his conviction that “[w]e need somebody who’s got the heart . . . the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

In all of the polling of the American electorate and its anxieties and hopes in the coming election, concerns about the Supreme Court and the filling of future vacancies do not rank very high.

But the identities of those nine deciders should be kept very much in mind when you vote. Because on any number of issues—whether you’re worried about winding up in some government database as a “person of interest,” or simply concerned about the future of health care—you won’t escape the power that the Supreme Court has in our lives.

On June 12, the Supreme Court did, however, rebuke both Bush and McCain by declaring the military commissions at Guantánamo unconstitutional!

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Is Obama’s Constitution Strong Enough?

The morning after the historical surprise in Iowa, people from all kinds of backgrounds were feeling good about themselves, welcoming the real possibility—whether or not they intend to vote for him—of a black American President. I felt that way, too.

Even at the Daily News, not known as a liberal bastion, the lead editorial was headlined “Obama’s Shining Moment,” and the hosanna ended: “We are witnessing the first serious black candidate for the U.S. presidency.”

After the primary results in New Hampshire, however, the need for new history textbooks is no longer certain. But Obama, with customary vigor, is continuing what is essentially his “change will bring us together” campaign. The day after his “shining moment” dimmed, he was stirring a large crowd in Jersey City with his standard stump speech: education, global warming, variations on The Audacity of Hope.

In that book, subtitled “Thoughts on Reclaiming the American Dream,” there is a chapter I was glad to see, “The Constitution,” in which he rails against the Bush White House for opposing “any suggestion that it was answerable to Congress or the courts.”

Obama did make one colossal mistake in that chapter, though, writing of the 1787 Constitutional Convention that “the outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them.”

Ask the first 100,000 schoolchildren you meet who James Madison even was—or whether they know that the Founders were so fearful of a king-like president that they locked in (or so they thought) a separation of powers among three branches of government—and you will be disappointed by their answers.

With his contagious spirit, Obama could be a powerful educator not only of American schoolchildren, but also much of the rest of the citizenry, about why this is the oldest constitutional democracy in the world—and what it will take to keep it. And he could show, forcefully, that the Bush-Cheney administration is dangerous proof that the Constitution is not self-enforcing.

Once in a while, Obama makes a passing reference to our diminishing individual liberties, but hardly ever in his stump speeches. At an early-morning rally the day of the New Hampshire vote, he told some 300 students at the Dartmouth College gym: “My job this morning is to be so persuasive . . . that a light will shine through that window, a beam of light will come down upon you, you will experience an epiphany, and you will suddenly realize that you must go to the polls and vote for Barack.” One of the reasons to vote for him, he continued, was his pledge to end the Bush-Cheney era of “wiretaps without warrants.”

He didn’t add that Bush wants to make this spying on us permanent. And when he’s not in front of a roomful of students with the television cameras on him, Obama hardly ever shows the urgent passion for restoring the Constitution that he exhibits on other issues. Hillary Clinton also invokes “change” as if it’s a medicine to cure all ills, but she too largely ignores the incremental disappearance of the Bill of Rights—including the last rites for our guarantees of personal privacy.

The intersecting precedents this administration has created for what Commander in Chief Bush calls “the unitary executive” will not vanish after he does. This overturning of the very structure of the Constitution can continue for many years to come, under Republicans or Democrats.

So what are Obama’s plans to restore the Constitution—especially regarding the activities of our domestic and international intelligence agencies? And in view of Bush’s legacy with the Roberts-Alito Supreme Court, what would President Obama’s criteria be for filling any vacancies during his time in office? It would help if he would tell us now which Supreme Court justices, past and present, he most respects, and why.

It would also be useful if somebody on Obama’s campaign would give him the Freedom Pledge that Bruce Fein, chairman of the Washington-based American Freedom Agenda, has asked all of the presidential candidates to sign.

Fein, a conservative and a constitutional scholar, was in Ronald Reagan’s Justice Department, and he is a searing critic of this administration’s subversion of what it calls “American values.”

In my conversations with him, and in an October 28 letter in The New York Times, Fein has listed the powers that a presidential candidate should absolutely renounce if he or she intends to root out the noxious, lawless changes that Bush, Cheney, and their accomplices have imposed on our nation, and on what we represent to the world:

“Torture, presidential signing statements [which give the president power to ignore the bills he signs]; indefinite detentions of American citizens as enemy combatants; military commissions that combine judge, jury and prosecutor; spying on American citizens in contravention of federal statutes on the president’s say-so alone . . . kidnapping; imprisoning and torturing suspected terrorists abroad; executive privilege to shield the executive branch from Congress; prosecuting journalists under the Espionage Act for exposing national security abuses [The Washington Post‘s Dana Priest had been threatened with such prosecution]; listing organizations as terrorist groups based on secret evidence; suspending the writ of habeas corpus during the conflict with international terrorism; and invoking the state- secrets privilege to deny victims of constitutional wrongdoing any judicial remedy.”

Senator Clinton, says Fein, has refused to sign this pledge. In fact, the only candidate to do so thus far has been Representative Ron Paul, the insistently singular Texas libertarian.

Barack Obama used to teach constitutional law at the University of Chicago, and in his chapter on the Constitution in The Audacity of Hope, he emphasizes that “if there was one impulse shared by all the Founders, it was a rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority. . . . George Washington declined the crown because of this impulse. . . . ”

Is Obama ready to commit himself to bringing that “impulse” back to our government? Although he insists that his candidacy will be an engine of change, to paraphrase Duke Ellington, it won’t mean a thing if ain’t got that constitutional swing. He quotes Martin Luther King on “the fierce urgency of now”: Show that where it most counts, Barack.

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Do You Miss Our Constitution?

” If Americans win a war [against terrorism] and lose the Constitution, they will have lost everything. “
-– Lance Morrow, Time, March 30, 2003

“We cannot allow this [Military Commissions] Act to stand. It violates some of the most basic principles upon which human rights are founded. And we must not rest until it is no longer the law of the land in our country. “
Amnesty International, February 2007


Ours is the oldest constitution in the world, and for more than 200 years it has survived many grave assaults from one or more of our three branches of government. For example, in 1798, only seven years after the First Amendment was included in the Constitution, Americans, under the Alien and Sedition Acts, were put in prison for holding the president up to ridicule.

The Bush administration has cumulatively done more profound damage to our founding document than any previous administration. And because the president has placed John Roberts and Samuel Alito on the Supreme Court, it may be years before we regain some of our privacy rights under the Fourth Amendment—and other of our suspended liberties.

But Bush’s most wide-ranging assault on who we are as Americans is the Military Commissions Act of 2006, which he signed on October 17, 2006. As I have detailed in previous columns, this law—rushed through by the then-Republican-controlled Congress—annuls two previous Supreme Court decisions on our treatment of prisoners suspected of terrorism. It so expands the definition of “unlawful enemy combatants” (a Bush term unknown in international law) that it can also imprison longtime legal immigrants here—and American citizens—as “enemy combatants” without charge.

Only the president decides who can be held as an “unlawful enemy combatant”—and he is also in charge of the “alternative” interrogation techniques that can be used to extract evidence from them.

Moreover, the MCA prevents the use of the Geneva Conventions against any American interrogators or other personne. However, there are in our laws specific references to the Geneva Conventions—which the MCA now violate.

In Hamdan v. Rumsfeld (June 2006), the Supreme Court ordered the president to adhere to these very Geneva Conventions (of which we are a signatory) with regard to all our prisoners—including “unlawful enemy combatants.” All sentences against them, ordered the Court, must be handed down by a “regularly constituted” U.S. court that “provides all the judicial guarantees recognized as indispensable by civilized peoples.”

Congress overturned that Supreme Court ruling in the Military Commissions Act. And on February 20, the District of Columbia Court of Appeals upheld the section of the Act that strips all prisoners at Guantanamo of any habeas corpus access to our courts. They will be tried only by military tribunal, which will not permit them to see any classified evidence against them or contest evidence obtained just by hearsay. Nor can they confront the primary witnesses against them.

In her dissent to that D.C. Circuit Court decision (Lakhdar Boumediene, et. al. v. George W. Bush, et. al.), Judge Judith Rogers also pointed to the new law’s permitting of “coercive interrogation” of detainees (which often turns out to be a euphemism for torture). But the common law, wrote Judge Rogers, “has regarded torture and its fruits with abhorrence for over 500 years.”

However, we Americans have descended even farther from being “a civilized nation” in sections of the MCA described on findlaw.com by Joanne Mariner, Human Rights Watch’s invaluable director of their Terrorism and Counterterrorism Program. Reading this, you may get a horrifying sense, as I have, of how deeply this administration has desecrated the core of our justice system: due process (fundamental fairness).

Keep in mind, as Mariner adds, that the MCA also allows the CIA to continue its “renditions” (kidnapping suspects to be tortured in other countries) and permits the agency to resume operating its own secret prisons (“black sites”) around the world.

“The MCA,” Mariner writes about prison treatment, “contains several provisions that are meant to bar the public [We the People] from ever hearing direct testimony about the CIA’s abusive methods. These provisions allow the government to protect the ‘sources, methods or activities by which the United States acquired evidence’ if these practices are classified.” Characteristically, the Bush administration insists “that all ‘alternative’ interrogation procedures are classified”—including “coercive” methods. (Emphasis added.)

Prisoners who have been tortured—and pressured not to reveal these classified “alternative” practices used on them—will, however, want to tell their lawyers. However, Mariner continues, the attorneys won’t be able to report to the outside world any of these “classified” abuses, including the torture that their clients have told them about. Prisoners’ lawyers “must turn over all their notes and documents,” Mariner reports, “before they leave Guantanamo, and they can only speak about the information they have obtained from their clients after it undergoes classification review.”

Therefore, none of us will know how the “evidence” used against these prisoners was extracted.

The president often declaims about the “American values” that we are defending—and which will hopefully inspire other nations. On his watch, as the MCA shows, this is what these values have become!

Rather than wait to find out whether a majority of the John Roberts Supreme Court will agree that these are indeed the values to which we must resort to prevail over the terrorists, some members of Congress are working on bills to truly Americanize the Military Commissions Act. Next week: What their changes involve. One of the proposed bills, introduced by Senator Christopher Dodd of Connecticut, couldn’t be more aptly titled: “Restoring the Constitution Act of 2007.”

Meanwhile, Amnesty International is so justifiably alarmed by the Military Commissions Act that “Amnesty International groups in Great Britain, Germany, Australia, and Japan are mobilizing their members and governments to help create global pressure to reverse the MCA and end other human rights abuses, including shutting down Guantanamo Bay.”

Amnesty International is also, of course, mobilizing its members in this country. You don’t have to be a member to write—or otherwise urgently contact your representatives and senators. New Yorkers might start with Senators Clinton and Schumer, neither of whom are in the forefront of this legislation to bring back what we used to stand for around the world.

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Daughter of the Constitution

Anna Diggs Taylor never intended to become the first black woman to serve as chief judge of the U.S. District Court in eastern Michigan. . . .[S]he accepted out of a sense of historic duty. David Ashenfelter, Detroit Free Press, August 7


The first judge to strike down the National Security Agency’s secret warrantless surveillance program and the corollary lawlessness of its enabler, George W. Bush, continues to have her judicial competence derided by certain law professors, including some who support her basic finding but complain that her ruling had too much passion and insufficient legal analysis.

On the other hand, the 73-year-old Judge Taylor, whose legal career spans 49 years, gets high ratings from the reliable Almanac of the Federal Judiciary (“smart as hell,” says one of the comments.) And University of Chicago law professor Geoffrey Stone, author of the invaluable Perilous Times: Free Speech in Wartime (Norton Paperback), says:

“She was right as a matter of law . . . [and showed] a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security.” (Emphasis added.)

Another characteristic of this judge is determination. In 1957, on a scholarship at Yale Law School, she was one of only five women in the graduating class. Being black as well, she discovered that no law firm in New York or Washington was interested in this out-of-the-mainstream young woman. But in the Solicitor’s Office of the U.S. Department of Labor, she found a place—thanks to assistant secretary of labor J. Ernest Wilkins, the first black ever appointed to a subcabinet position. (There are more networks than “the old-boy network.”)

Then, moving to Detroit, she became an assistant Wayne County prosecutor for a year. In the summer of 1964, the young lawyer was in Mississippi, working in the National Lawyers Guild program to provide needed legal services for black and white civil rights workers in that citadel of racism.

On the day she arrived, three of those civil rights workers—James Chaney, Andrew Goodman, and Michael Schwerner—disappeared. A coven of the Ku Klux Klan knew where they were, having murdered them.

As Ashenfelter of the Detroit Free Press has reported, Taylor, with two companions, “drove to the Neshoba courthouse to inquire about the missing men. . . . [T]hey were menaced by a crowd of angry white people who shouted racial slurs at them. ‘We were afraid we were going to be killed,’ Taylor said.”

She more than survived. Back in Detroit, Taylor became a U.S. Attorney for a year, went into private practice, and in 1979, as an appointee of President Jimmy Carter, became the first black female district judge in the Sixth Circuit. In 1996, she moved up to be chief judge of that district court, and since 1999, has been on senior status, with a smaller caseload.

When Taylor suddenly was of national interest as the judge who would rule on American Civil Liberties Union v. National Security Agency, reporter Ashenfelter introduced her to readers beyond Detroit: “Although Taylor is a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s, people who know her say she will follow the law—not her politics—in deciding the case.” In that news story, Harold Pope III, a former president of the National Bar Association (of black lawyers), said of the soon to be nationally embattled judge:

“She’s not going to let anything stand in the way of a proper analysis of the law and the facts.” Mr. Pope spoke from experience. For example, Judge Taylor approves of certain forms of affirmative action, but when Pope was a staff attorney for the city of Detroit, she ruled against him and the city—as the Free Press notes—”declaring unconstitutional a program that reserved municipal contracts for minority venders.”

On the website of the Michigan Supreme Court Historical Society (August 29), a short biography of Anna Diggs Taylor ended:

“Her success did not come easy. Taylor faced discrimination because of her race and her sex throughout her legal career. Yet, she persevered in her uphill struggle against prejudice. Anna Diggs Taylor set a standard of excellence for the abilities and performance of women in law.”

Not only women. With the American Civil Liberties Union
v. National Security Agency decision, she has focused—for those in this nation who care about the separation of powers—on the precipitous danger of future administrations following Bush’s precedent of unilateral (kinglike) powers in this war on terrorism with no discernible end.

In writing about Taylor’s rise to turbulent renown, Paul McMasters, the tribune of the Constitution at the First Amendment Center, wrote:

“Interestingly, the final words of Judge Taylor’s ruling are from Supreme Court Justice Earl Warren’s 1967 opinion in U.S. v. Robel: ‘Implicit in the term “national defense” is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties.’ ”

And as for the clear and present danger of unchecked, omnivorous National Security Agency spying, General Michael Hayden, when he was director of the NSA (he now runs the CIA), was asked during congressional testimony six years ago about the ACLU’s fear the awesome NSA capacities could be used against Americans. “For us to do our mission in today’s telecommunications world requires a substantial amount of capability in ways that are prohibited. Of course I have to answer yes,” he said, meaning such an outcome would indeed be possible.

Now Judge Taylor has resoundingly told the National Security Agency and the president that they are forbidden to use their surveillance powers in ways prohibited by the Constitution. Her face may never be on a postage stamp, but she surely is a daughter of the Constitution.

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Bushwhacking the Constitution

These are weighty and momentous considerations that go far beyond the detainees at Guantánamo. . . .[This amendment] . . . takes away jurisdiction of the Supreme Court of the United States. It is untenable and unthinkable and ought to be rejected.

Senate Judiciary Committee chairman Arlen Specter , on the floor of the Senate, November 15, objecting to an amendment to the defense authorization bill by Lindsey Graham, Carl Levin, and Jon Kyl that would effectively close our federal courts to any charges of abuse, including tort ure, of Guantánamo prisoners. The amendment passed 84 to 14.

I learned long ago not to say the sky is falling when it’s only raining. However, the hard rain on our fundamental liberties has been persistently increasing since the White House rammed through the Patriot Act soon after 9-11. This nation has survived grave constitutional crises before, but recent events in the U.S. Senate that further strengthen and deepen presidential powers are reason to be alarmed at what can follow under the present administration.

On November 10, with the support of Bush’s Justice Department, the Senate had previously passed an amendment by the manipulatively mercurial Senator Lindsey Graham that the American Civil Liberties Union charged “would make the McCain anti-torture amendment nearly impossible to enforce at Guantánamo Bay.

“The [original] Graham amendment would strip all courts, including the Supreme Court, of jurisdiction to consider habeas [corpus] petitions or any other action challenging any aspect of the detention of foreign detainees [there], except for the narrow question of whether [Defense Department] status review boards follow their own rules.”

The vote on November 10 was 49 to 42. That action by the Senate so alarmed the law school deans at Georgetown, Harvard, Yale, and Stanford—Alexander Aleinikoff, Elena Kagan, Harold Hongu Koh, and Larry Kramer—that they wrote a letter to Senator Patrick Leahy, Democrat of Vermont, that he inserted in the November 15 Congressional Record. (Leahy, a firm constitutionalist, voted against Graham’s amendment.) I haven’t the space for all of the deans’ letter, but I quote from page S12802 and strongly recommend you read the entire Senate debate that day, which led to the eventual 84-14 vote that disgraces the majority of the Senate—and could place the liberties of all of us, not only the Guantánamo prisoners, at risk.

Said the deans: “We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of non-citizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions [by the CIA], and the abuse of prisoners in Guantánamo, Iraq, and Afghanistan.

“The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. [Emphasis added.] As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power, and judicial review to ensure that those rules have in fact been honored.

“When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government. We urge you to vote to remove the court-stripping provisions of the Graham Amendment from the pending legislation.”

The majority of the Senate continue to ignore all warnings on this subversion of the separation of powers. But there was a backlash to that first Graham amendment from civil liberties and human rights organizations and members of Congress. This resulted in various amendments and counter-amendments on the Senate floor to “improve” that initial startling Graham amendment. Adding minimal due-process protections, this “improvement” nonetheless remains dangerous to the future of the Constitution and its separation of powers because it continues to deny habeas protections to Guantánamo prisoners. Making that case, I quote from a November 17 letter to Senate Majority Leader Bill Frist from the justly prestigious Association of the Bar of the City of New York. Despite the attempts to perform cosmetic surgery on the original Graham amendment, said the New York City bar, the version that the Senate is sending to the House “leaves a gaping hole precisely where the Administration’s policies are most troublesome, and where the world is most carefully watching—the indefinite detention of persons whose status as an enemy combatant has not been adequately examined, and the treatment of those detainees.

“The ‘war on terror,’ unlike other U.S. wars, has no conceivable end point. . . . Therefore, there is every reason to believe that the detainees being held at Guantánamo could spend the rest of their lives as prisoners.”

The New York bar letter ends with this acutely telling point: “Just yesterday, we learned that our government expressed outrage over the torture of prisoners by Iraqi captors in an Iraqi ministry building. To have moral force, our expressions of outrage must be buttressed at home by protections that only the writ of habeas corpus can provide.”

The Graham-Levin-Kyl amendment passed on November 15 by a resounding vote of 84 to 14. It does not—as the ACLU emphasizes—”allow any habeas claim for protection against government-funded torture or abuse . . . and prohibits all habeas claims if the government decides it is going to hold a person with-
out ever determining their status.” (Distinguished civil libertarians Hillary Clinton and Chuck Schumer voted for the amendment.)

The “great writ” of habeas corpus goes back to the Magna Carta in 1215 and allows a prisoner to go to a court to make the government prove that he or she is being legally held. Making it impossible for a Guantánamo prisoner to go to a court on a habeas petition concerning torture makes the McCain amendment meaningless. I’ve left two messages with McCain’s press secretary to have the senator explain this clear inconsistency. There has been no response, in contrast with quick answers to previous queries.

I had thought John McCain was a man of principle, not just another presidential candidate in 2008.

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The Broken Constitution

The outlook of Richard Nixon was that he was above the law. Watergate disabused him of the notion. The position of George W. Bush is that he is a law unto himself. Lincoln Caplan, editor of Legal Affairs (associated with Yale Law School), September 2005


Have we ever had a situation like this, where presumably this warlike status could last for 25 years, 50 years, whatever it is?Supreme Court Justice Sandra Day O’Connor, during oral arguments, Hamdi
v. Rumsfeld, 2004


The torture of detainees was so widespread and accepted that it became a means of stress relief for soldiers. Soldiers said they felt welcome to come to the PUC [Person Under Control] tent on their off hours to ‘Fuck a PUC’ or ‘Smoke a PUC.’ ‘Fucking a PUC’ referred to beating a detainee, while ‘Smoking a PUC’ referred to forced physical exertion sometimes to the point of unconsciousness.“Leadership Failure: Firsthand Accounts of Torture of Iraqi Detainees by the U.S. Army’s 82nd Airborne Division,” Human Rights Watch, September 2005


Since 9-11, I’ve been covering the steadily increasing dislocation of our system of government—most vividly demonstrated by the Bush administration’s systematic abuses of detainees (a/k/a prisoners), including torture. But despite the huge amount of documented evidence, only low-level soldiers have been disciplined. The top of the chain of command—Bush, Rumsfeld, Gonzales, et al.—is untouched by the Defense Department’s “investigations”
of itself.

During the 1787 Constitutional Convention in Philadelphia, there was a continuing, fractious debate on how to prevent one branch of government (the executive) from overpowering the other (the legislative). The Supreme Court had yet to realize its full identity until John Marshall became chief justice in 1801. (Earlier, Alexander Hamilton erroneously called it “the least dangerous branch.”)

There have been times in our history when the presidency did overpower the other two branches. During the Civil War, Abraham Lincoln suspended “the Great Writ,” habeas corpus—by which a person imprisoned can go to a court and make the government prove he or she is being held legally. With Lincoln supreme, around 38,000 Americans suspected of espionage or just disloyalty were arrested by military officers, and were imprisoned—without charges—indefinitely, even though the civilian courts were still open. (George W. Bush has followed suit with “enemy combatants.” And the Republican leadership in Congress is now working on bills to “streamline” habeas corpus into a corpse. More on that in a later column.)

In 1866, Lincoln, dead by then, was sternly rebuked by the Supreme Court (Ex Parte Milligan) for the unconstitutional powers he had taken during the Civil War. Said the Court:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” (Emphasis added.)

But George W. Bush, as commander in chief, ignores that ruling in the forbidding name of national security as he keeps declaring that this nation is an example to the world—of freedom and the moral values of a constitutional democracy.

Recently, at least some of the press has given considerable space to the newest in a series of reports by Human Rights Watch, an invaluable watchdog of this administration’s making up the rule of law as it goes along. However, another hurricane or another disappeared young woman will take the place of Human Rights Watch’s “Leadership Failure: Firsthand Accounts of Torture of Iraqi Detainees by the U.S. Army’s 82nd Airborne Division.”

As National Public Radio’s excellent national security correspondent Jackie Northam said during her September 25 report on this Human Rights Watch exposé: “There’s just too many reports like this from captains, sergeants, officers, non-commissioned officers, that we can’t keep ignoring it.”

I have large files of such reports from Amnesty International, Human Rights First, the Center for Constitutional Rights,
The New England Journal of Medicine (about military doctors’ complicity in these often savage abuses of prisoners), and New York University law school’s Center on Law and Security. But with Republican control of Congress, and an opposition Democratic Party that doesn’t focus nearly enough on this continually broken rule of law (including the evisceration of the Fourth Amendment at home), all the protectors of the Constitution can do is keep hanging on. (Next week: How John McCain is insistently staying on the case of brutalized detainees.)

From the Human Rights Watch report: “Residents of Fallujah called them ‘the Murderous Maniacs’ because of how they treated Iraqis in detention. They were soldiers of the U.S. Army’s 82
nd Airborne Division . . . stationed at Forward Operating Base Mercury in Iraq. The soldiers considered this [description of them] a badge of honor.”

The report discloses that two non-commissioned officers and a captain, Ian Fishback, in multiple interviews with Human Rights Watch investigators, say that “torture of detainees took place almost daily . . . from September 2003 to April 2004. . . . The acts of torture and other cruel or inhuman treatment . . . include severe beatings (in one incident, a soldier reportedly broke a detainee’s leg with a baseball bat); the application of chemical substances to exposed skin and eyes; forced stress positions . . . sometimes to the point of unconsciousness; sleep deprivation [for days on end]; the stacking of detainees into human pyramids; and, the withholding of food (beyond crackers) and water.”

For 17 months, Captain Fishback raised his concerns within the army chain of command, and the army agreed to conduct an investigation “only after he had contacted members of Congress [including Senator John McCain] and considered going public with the story.” Days before the Human Rights Watch report was released, the captain was told he couldn’t leave the base to meet with members of McCain’s staff “without approval and that approval was being denied because his commanding officer felt [he] was being naive and would do irreparable harm to his career.”

The captain, however, refuses to be muzzled.

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Who Owns the Constitution?

The conscience of this nation is the Constitution. Supreme Court Justice William O. Douglas


On September 17, 1987, I was privileged to be in the audience at the Association of the Bar of the City of New York when Justice William Brennan, who had become the conscience of the Bill of Rights on the high court, gave the 42nd Annual Benjamin N. Cardozo Lecture.

That lecture, still available in the archives of the Association of the Bar of this city, should be read by members of Congress and every law student and law professor in the country—as well as by every judge, from local housing and family courts to the U.S. Supreme Court.

Titled “Reason, Passion, and ‘The Progress of the Law,’ ” Brennan’s emphasis on what he called “the human reality of the judicial process” is even more vital now that the Rehnquist Supreme Court has prioritized economic rights and the rights of individual states over the rights and liberties of individual Americans throughout the country.

Moreover, since George W. Bush is very likely to name the next chief justice of the Supreme Court as well as one or two other replacements before the end of his second term, it is crucial for leaders of the Democratic Party, including future presidential aspirants, to do more than obstruct Bush’s nominees. The Democrats have to tell the country what their criteria are for the Supreme Court and other life-tenured federal judges—instead of mechanically objecting to nominees for being “out of the mainstream.”

In New York, in 1987, Brennan emphasized that the framers of the Constitution made “a sharp break with the past and its assumptions of a natural social hierarchy. They saw government as a contract formed by the individuals of the society with each other, instead of a mutual arrangement between rulers and ruled.”

Therefore, due process—fairness—the basis of our system of justice, “now applied to all officials [very much including judges], commanding them to treat citizens not as subjects, but as fellow human beings. In short, due process requires that the rulers and the ruled acknowledge their common humanity, and that official judgment always remain human judgment.”

During the Warren Court (1953 to 1969), William Brennan was Chief Justice Earl Warren’s closest adviser and confidant (Brennan joined the Court in 1956). This was the Court that created furors by declaring unconstitutional segregation in public schools by individual states and insisting on the federal due process constitutional rights of criminal suspects and prisoners—and in other ways, was often focused on what Brennan called “the essential dignity and worth of each individual.”

In his later years on the Supreme Court, William Brennan was a frequent dissenter because he saw less and less concern—on the Rehnquist Court—for “the essential dignity and worth of each individual.”

I got to know Justice Brennan during many months of researching a profile of him for The New Yorker—and afterward. He never lost his conviction that his passion for individual rights and liberties would eventually be regenerated on the Supreme Court because, he said:

“The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs.”

To give you one example, among many, of how far the Rehnquist Court has departed from “the essential dignity and worth of each individual,” there was its majority ruling in the case of Patricia Garrett (University of Alabama v. Garrett, 2001).

Patricia Garrett, a supervising nurse at the University of Alabama’s medical center in Birmingham, was transferred from her position—and demoted—after having been treated for breast cancer. When she sued, the Rehnquist Supreme Court (5-4) agreed with Alabama, on the basis of states’ rights, that employees of that state are not protected, even under the Americans With Disabilities Act, if they are discriminated against because of a disability.

Arlene Mayerson, directing attorney of the Disability Rights and Education and Defense Fund, said, “The majority decision sets a new low in equal-protection law,” despite the “Fourteenth Amendment guarantee of equal protection of the law.”

Democrats have to alert the citizenry about the radical change by the Rehnquist Court in “federalism”—how power over individual lives is shared between the national and state governments. (See my column last week.) As Howard Gillman, a Supreme Court specialist at the University of Southern California, warns, the issue of federalism has become “the biggest and deepest disagreement about the nature of our constitutional system. . . . At some level, the country will eventually decide which of these two visions will triumph.”

In 1986, Justice Brennan, speaking in New York to the American Bar Association’s Section of Individual Rights and Responsibilities, said:

“We do not yet have justice, equal and practical, for the poor, for members of minority groups, for the criminally accused, for the displaced persons of the technological revolution, for alienated youth, for the urban masses, for the unrepresented consumer—for all, in short, who do not partake of the abundance of American life. . . . The goal of universal equality, freedom, and prosperity is far from won and . . . ugly inequities continue to mar the face of the nation. We are surely nearer the beginning than the end of the struggle.”

Who among the leaders of the Democratic Party is saying that now—when we are still far from the fulfillment of the Fourteenth Amendment’s guarantee of “due process of law” and the right of “any person” to “the equal protection of the laws”?

“A well-instructed people alone can be permanently a free people,” said James Madison, the chief architect of the Bill of Rights. Where are these teachers of the people in the Democratic Party leadership?

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Whose Constitution Wins?

In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election.

But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional. Adam Cohen, New York Times legal affairs analyst, quoted by Jeffrey Jamison on the blog of the American Constitution Society, January 25


Senate Majority Leader Bill Frist has rushed to accuse Democrats of blocking federal appellate court nominees solely because they are religious. As Abraham Foxman, national director of the Anti-Defamation League, says, “Playing the ‘religious’ card is as unacceptable as playing the race card.”

Meanwhile, embattled House Majority Leader Tom DeLay has convinced the House Judiciary Committee to begin to define the “good behavior” that enables federal judges to stay on the bench for life. So much for judicial independence as one of the bulwarks of the separation of powers. Whichever party is in power will grade “good behavior.”

While assaults on the independence of the federal judiciary are becoming more fiery on both sides of the aisle in Congress, the media have ignored the most important article in many years on an ever graver danger to the Bill of Rights and the Fourteenth Amendment’s guarantees of “due process of law” and “the equal protection of the laws.”

Also ignoring this siren-like warning issued in the cover story of the April 17 New York Times Magazine—(“The Unregulated Offensive,” by George Washington University law professor Jeffrey Rosen)—is, as of this writing, the flailing Democratic leadership in Congress. If the leaders wake up, they can finally energize and focus the party.

Focusing on a quite possible takeover, in the years ahead, of the federal courts by ardent and influentially interconnected supporters of the “Constitution in Exile,” Rosen’s long article, documented with a historical perspective, was preceded by this blazing text:

“They [brandishing ‘the Constitution in Exile’] believe that an individual’s economic rights are inviolable [including corporations]. Which leads them not to believe in the constitutionality of the Environmental Protection Agency, the Occupational Safety and Health Administration, Social Security and the minimum wage.

“They have built a network of scholars, public-interest lawyers and sympathetic judges. The next Supreme Court appointment could be one of theirs.”

While this sounds like a variation on Orson Welles’s radio broadcast of an invasion of Earth by Martians, Jeffrey Rosen—hardly a radical legal historian—makes a case that should alarm anyone who recognizes what the late Supreme Court Justice William Brennan told me in our last conversation: “Look, pal [he called a lot of people pal], we’ve always known—the framers knew—that liberty is a fragile thing.”

The threat to our liberty from the warriors trying to bring back the Constitution in Exile is all about federalism—how power over us is shared between national and state governments. During the 1787 Constitutional Convention in Philadelphia, there were long and bitter arguments about how those powers were to be divided.

As Linda Greenhouse, the New York Times‘ exceptional reporter on the Supreme Court, noted in 2003, the conservatives who yearn to return to the Constitution in Exile—which largely held sway until Franklin D. Roosevelt’s much more democratic New Deal—regard it as “a vision that includes [individual] state sovereignty, limited national power and strong protection for private property”—very strong protection for not only private property but other economic rights.

By contrast, Linda Greenhouse added, liberals have faith in “the ‘Shadow Constitution,’ under which the government has affirmative obligations to alleviate inequality, protect people from harm . . . and surround criminal defendants and prisoners with a range of safeguards.”

Next week: some of the dynamics in this crucial battle as to which of these two constitutions will prevail for years to come. A majority of the Rehnquist Court has been in consonance with the Constitution in Exile, and much depends on who will soon succeed Rehnquist as chief justice.

Until reading Rosen’s article, I had thought that George W. Bush—banking on a less than compelling Democratic opposition that has yet to find its way—would nominate Antonin Scalia. But Rosen persuades me that Clarence Thomas is a more consistent and persistent champion of the sacredness of economic rights. Moreover, Bush would probably relish appointing the first black chief justice, following his father’s lead in bringing Thomas onto the Court.

During Clarence Thomas’s confirmation hearing in 1991, Rosen notes in his article, Senator Joseph Biden, then chairman of the Senate Judiciary Committee, confronted Thomas with the nominee’s admiration for the writings of University of Chicago law professor Richard Epstein, a very influential champion of the supremacy of corporations’ and others’ “economic liberties.”

Thomas said then that he was only interested in Epstein’s “theory.” But as Rosen adds, Thomas, as associate justice, has helped implement the majority of the Rehnquist Court’s rulings upholding the superiority of economic rights, over attempts by Congress to pass laws that would protect many Americans from a range of discriminatory laws by the individual states affecting health, employment, and civil rights. Those laws by Congress have been declared unconstitutional by the current Court.

The lodestar Supreme Court case for champions of the Constitution in Exile is Lochner v. New York (1905). The Court ruled that the bosses of bakery employees had the economic right to insist that their employees work unlimited hours. Since these wage serfs couldn’t even take a day off when they were sick, the public’s health was endangered. This screwing of the workers eventually showed the way for a New Deal Court to authorize collective bargaining.

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Cloud Over the Constitution

The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation’s history. These claims put President George W. Bush literally above the law, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time, for any reason that Bush associates with national security . . . —Stuart Taylor Jr., former New York Times Supreme Court reporter, “America’s Best Choice?,” Legal Times, November 15, 2004


In a scathing lead editorial (November 22), “Mr. Gonzales’ Record,” The Washington Post challenged the Senate Judiciary Committee, which will soon hold a confirmation hearing on the president’s appointment of Alberto Gonzales to be this nation’s chief law enforcement officer, the daily protector of the Constitution: “Above all, Mr. Gonzales should answer this question [before the Senate Judiciary Committee]: Why is a lawyer whose opinions have produced such disastrous results for his government—in their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courts—qualified to serve as attorney general?”

As I wrote in my last two columns, the editorial summarized some of the disastrous advice from this man without any law enforcement experience, who always tells George W. Bush what he wants to hear: authorization for torture of noncitizen detainees; approval of violations of international law; and the breathtaking assertion that the president, without going to the courts or to Congress, can imprison American citizens indefinitely, without charges, and without access to lawyers.

Actually, The Washington Post‘s challenge is to the Democrats on the Senate Judiciary Committee. The Republican members will vote, in lockstep, for Gonzales. But I have found out that most, if not all, of the Democrats will also cave in—after harrumphing at Gonzales for some hours.

I know this from an inside source whom I cannot name. I very rarely use blind sources, but there are times when to report on what’s actually going on, I have to protect a source. The Democrats on the committee know what I, and others, have been telling you about Gonzales. In their possession, for instance, is a copy of the July/August 2003 Atlantic Monthly article by Alan Berlow that documents how Gonzales, as legal counsel to then Texas governor George W. Bush, sent 56 death row inmates to be executed after giving three-to-seven-page memos on their cases to Bush that rubber-stamped the lethal decision of the notoriously murderous Texas courts.

Even the Democrats’ attack dog on the Judiciary Committee, Charles Schumer, has said he prefers Gonzales to John Ashcroft. That’s like saying you prefer Torquemada to Attila the Hun. Indeed, the ranking minority member on the committee, Patrick Leahy, has said that with Bush re-elected, if he sent up Attila the Hun to replace Ashcroft, he’d get his way.

The Democrats prefer to hold their fire until the next Supreme Court nominee. As a result, for the next four years, the manipulative Alberto Gonzales will be finding additional ways to expand the Patriot Act, integrate the further surveillance of us all into government data banks, and, as he already has, make the Bush administration the most secretive in American history.

In a recent detailed summary of Gonzales’s record as White House counsel, the Reporters Committee for Freedom of the Press (I’m on its steering committee) emphasized: “Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny.”

So, as we are abandoned by the Democrats on the Judiciary Committee, what can we do? For one thing, keep in touch with the website of the Bill of Rights Defense Committee (bordc.org). It has a continuing record of cities and towns passing resolutions pressuring their members of Congress to pass liberating anti–Patriot Act (and future anti-Gonzales) legislation. (A number of such bills will be reintroduced in the next session of Congress.) And the website includes organizing strategies and useful news reports.

Also, while I have substantial differences with certain American Civil Liberties Union policies and with the quality of some of its top leadership, the ACLU staff is persistently effective in countering, through communication and lawsuits, the administration’s subversion of the legacy of Samuel Adams, Thomas Jefferson, Eugene Debs, Bayard Rustin, and other freedom defenders.

The ACLU membership has increased in direct ratio to the ascendancy of Bush, Ashcroft, Rumsfeld, Gonzales, et al. And the more members it gets, the more it can accomplish. I suggest you join the ACLU (the national office is in New York: 125 Broad Street, 18th floor; Attention: membership department; NY, NY 10004; 212-549-2585).

Whenever I speak at a school, or at any gathering, I bring the late Supreme Court justice William O. Douglas into the conversation. As a defender of constitutional liberty, he was the direct opposite of Alberto Gonzales. The Constitution and the Bill of Rights, Douglas once wrote to a group of young lawyers, are not self-executing.

He warned: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.”

The changes in the air have become much more than slight. The twilight is deepening, but so is the resistance—despite the retreat of the Democrats on the Senate Judiciary Committee. The fatuous Michael Moore will not save us. Only we can. All through our history, dissent and resistance have beaten back the darkness. Tom Paine and Martin Luther King knew that, and like Joe Hill, their lives still resonate.