The recent Tribune series discussing civil liberties in America since the Sept. 11, 2001, terrorist attacks both criticized the administration’s disregard for fundamental constitutional rights and endorsed many of the administration’s initiatives, often using the shibboleth that the objections of the American Civil Liberties Union and others have prevented the worst abuses of governmental authority.
While some abuses were blocked, the details of the Bush administration’s agenda paint a picture of an executive branch bent upon undermining the most basic precepts of our Constitution.
The clearest evidence of the administration’s disregard for constitutional rights is its continued insistence that it can indefinitely imprison American citizens without charging them with a crime and without permitting them access to their lawyers. For 17 long months, the administration has imprisoned Jose Padilla, a native-born American, and held him without access to his lawyers, to the courts, to family or to the outside world. Padilla never has been charged with any crime yet remains in custody solely on the administration’s untested assertion that he is an enemy combatant.
Defending the Bush administration’s treatment of Padilla, a Justice Department lawyer recently told an incredulous federal appeals court that allowing Padilla to consult with a lawyer would interfere with successful methods of interrogation. Although the administration lawyer did not elaborate on what interrogative techniques they would forego if a lawyer were present, the government’s position defies the 6th Amendment guarantee of the right to legal counsel and disregards Supreme Court decisions recognizing that the right to counsel is necessary to protect against abuse during interrogations, a practice that is infamous for yielding false information.
The administration’s continued refusal to charge Padilla with a crime or to try him before a federal court to determine whether the evidence supports conviction and continued incarceration also violates the 6th Amendment requirement that the government inform all people arrested of the nature of the accusation against them and the 5th Amendment right not to be deprived of “life, liberty, or property without due process of law.”
Viewed together, the administration’s refusal to try Padilla and others before a federal court signal this administration’s refusal to submit to the rule of law. The Constitution assigns to the courts the role of determining whether sufficient evidence supports the imprisonment and punishment of a person for the crime charged.
You cannot lawfully evade this constitutional requirement by refusing, as the Bush administration has, to charge a detained person with a crime. This principle of separation of powers has withstood previous challenging times in our nation’s history.
Even during the Civil War, with battle engulfing much of the nation, the Supreme Court found that when the federal courts are open and functioning, they must review detentions. The Bush administration would ignore this historical precedent and reverse more than two centuries of American history out of some unwarranted concern that federal courts cannot operate in the best interest of our nation and national security.
As the Tribune series and earlier articles make clear, disregarding the Constitution allows real harm, not just abstract injury. Immediately after Sept. 11, the Bush administration rounded up and detained more than 1,200 people, purportedly on the grounds of national security. The administration refused to submit these detentions to public or judicial scrutiny (despite the fact that none of those detained was ever charged with terrorism). Many of these detainees routinely were denied access to their families and systematically denied the ability to retain legal counsel.
Behind this wall of secrecy, as the inspector general of the Department of Justice made clear in a report this summer, other detainees were abused, verbally, emotionally and even physically while in custody. Faced with evidence of this abuse, Atty. Gen. John Ashcroft said he offered “no apologies” for his department’s actions. This is hardly the model of a public servant who understands, let alone respects, basic civil liberties.
The Bush administration also repeatedly cites national security to justify law-enforcement investigations and surveillance based not upon reasonable suspicion but based on an individual’s race, ethnicity, religion or political views. Consider that the attorney general acted quickly after Sept. 11 to relax Department of Justice guidelines that required the FBI to show a “reasonable indication of criminality” before subjecting a religious or political organization to surveillance.
Released from these guidelines, the Tribune reported recently that the FBI again is collecting extensive information on anti-war protesters, again targeting Americans for investigation based on their political views rather than allegations of unlawful activity. Based on years of experience here in Chicago and elsewhere, we know that law-abiding Americans, including members of the clergy opposed to some aspect of the government’s foreign policy and civil rights leaders and activists, now may be subjected to highly intrusive investigations based solely on their unpopular beliefs or membership in political or religious organizations.
The corrosive, long-term impact of these actions by the Bush administration are profound. Defying the courts and scrutinizing people because of their political views subverts our entire system of government, sending a message to young and old alike that our Constitution is not a bulwark of liberty but rather a facade of freedom that the executive branch can manipulate at whim to advance its ideological agenda. This cynical view undermines Americans’ confidence in our form of government.
How tragic it would be if we allow the government to weaken the American system of government in an effort to protect our national security.
