Dear America – full size
Repeatedly through our history, the liberties guaranteed by the Constitution have been threatened in war by an overreacting government and then reaffirmed in peace by calmer leadership. The Alien and Sedition Acts of 1798, Lincoln’s suspension of habeas corpus, the suppression of free speech during and after World War I, the internment of Japanese Americans during World War II, McCarthyism, and the wiretapping of Vietnam-era dissenters — all of these came to be seen, once fears subsided, as violations of our freedoms and embarrassments to our heritage.
George W. Bush’s presidency is another era of overreaction at the expense of constitutional rights, but the prospects for a quick correction are not auspicious. Nothing has helped end earlier bouts of repression so much as the fact that the wars themselves came to a close, and nothing has so exposed our liberties to indefinite jeopardy as the conception of a “war on terrorism” with no end.
The president claims an inherent power to imprison American citizens whom he has determined to be this country’s enemies without obtaining a warrant, letting them hear the charges against them, or following other safeguards against wrongful punishment guaranteed by the Bill of Rights. Under his administration, the government has engaged in inhumane treatment of prisoners that amounts to torture, and when Congress passed legislation to ban such treatment, he declared he would simply interpret the law his own way. Although the Constitution says treaties are the “supreme law of the land,” the president has abrogated them on his own. And, we now know, he ordered a secret program of electronic surveillance of Americans without court warrants.
But there is something more dangerous than any of these specific abuses and usurpations, and that is the theory of inherent powers that Bush invokes to justify most of these actions and the possibility of its being effectively institutionalized by a meek Congress and, worst of all, by a deferential Supreme Court.
My concern is analogous to the one that Justice Robert H. Jackson articulated when he dissented from the majority in Korematsu, the infamous Supreme Court decision in the midst of war (1944) upholding the constitutionality of the military order to intern Japanese Americans. A judicial construction sustaining the program, he wrote, “is a far more subtle blow to liberty than the promulgation of the order itself.” For by rationalizing the order, “the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
The real danger today is the loaded weapon that Bush and his defenders are willing to put in the hands of all future presidents. Even members of his own party ought to be able to see that danger, and act to stop it.
And remember Bush’s own words expressed contempt for the document on which our nation and its values are based,
“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”
“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!”