If there’s one thing defenders of civil liberties know, it’s that assaults on constitutional freedoms are bipartisan. Just as constitutional darkness didn’t first fall with the arrival in the Oval Office of George W. Bush, the shroud will not lift with his departure and the entry of President Barack Obama.
As atrocious as the Bush record on civil liberties has been, there’s no more eager and self-righteous hand reaching out to the Bill of Rights to drop it into the shredder than that of a liberal intent on legislating freedom. Witness the great liberal drive to criminalize expressions of hate and impose fierce punitive enhancements if the criminal has been imprudent enough to perpetrate verbal breaches of sexual or ethnic etiquette while bludgeoning his victim to death.
No doubt the conservatives who cheered Bush on as he abrogated ancient rights and stretched the powers of his office to unseen limits would have shrieked if a Democrat had taken such liberties. But now Obama will be entitled to the lordly prerogatives Bush established.
Growing up in Ireland and the United Kingdom, I gazed with envy at the United States, with its constitutional protections and its Bill of Rights contrasting with the vast ad hoc tapestry of Britain’s repressive laws and “emergency” statutes piled up through the centuries. Successive regimes from the Plantagenet and Tudor periods forward went about the state’s business of enforcing the enclosures, hanging or transporting strikers, criminalizing disrespectful speech, and, of course, abolishing the right to carry even something so innocuous as a penknife. Instructed by centuries of British occupation, my native Ireland, I have to say, took a slightly more relaxed attitude. My father once asked an Irish minister of justice back in the 1960s about the prodigious size and detail of the Irish statute book. “Ah, Claud,” said the minister equably, “our laws are mainly for guidance.”
President Bush was also a man unbound by law, launching appalling assaults on freedom, building on the sound foundation of kindred assaults in Clinton’s time, perhaps most memorably expressed in the screams of parents and children fried by U.S. government forces in the Branch Davidian compound in Waco. Clinton, too, flouted all constitutional war powers inhibitions, with his executive decision to rain bombs on the civilian population of the former Yugoslavia.
Bush has forged resolutely along the path blazed by Clinton in asserting uninhibited executive power to wage war, seize, confine, and torture at will, breaching constitutional laws and international treaties and covenants concerning the treatment of combatants. The Patriot Act took up items on the Justice Department’s wish list left over from Clinton’s dreadful Antiterrorism and Effective Death Penalty Act of 1996, which trashed habeas corpus protections.
The most spectacular abuses of civil liberties under Bush, such as the prison camp at Guantanamo, are acute symptoms of a chronic disease. The larger story of the past eight years has been the great continuity between this administration and those that have come before. The outrages perpetrated against habeas corpus under Republicans and Democrats alike, for example, have been innumerable, many of them little publicized. Take the case of people convicted of sexual felonies, who reach the end of their stipulated terms only to find that they face continued imprisonment without any specified terminus, under the rubric of “civil confinement,” a power as fierce as any lettre de cachet in France’s ancien régime.
Free speech is no longer a right. Stand alongside the route of a presidential cavalcade with a humble protest sign, and the Secret Service or local law enforcement will haul you off to some remote cage labeled “Designated Protest Area.” Seek to exercise your right to dispense money for a campaign advertisement or to support a candidate, and you will fall under the sanction of McCain-Feingold, otherwise known as the Bipartisan Campaign Reform Act of 2002.
In the case of public expressions of protest, we may expect particular diligence by the Secret Service and other agencies in the Obama years, though his reneging on a campaign promise to accept only public financing has stopped campaign-finance reform in its tracks. Liberals joyously eying Obama’s amazing $150 million haul in his final weeks have preserved a tactful silence on this topic, after years of squawking about the power of the corporate dollar to pollute democracy’s proceedings.
Worse than in the darkest days of the ’50s, when Americans could have their passports revoked by fiat of the State Department, citizens and legal residents no longer have the right to travel freely even inside the nation’s borders. Appearance on any of the innumerable watch lists maintained by government agencies means inability to get on a plane. And today you need your papers for more than just travel. The Indiana statute recently approved by the Supreme Court demands that persons lacking “proper” ID only cast provisional ballots, with a bureaucratic apparatus for subsequent verification. Thus, Americans no longer have an unimpaired right to vote, even if of appropriate age.
The late Murray Kempton used to tell me he remembered that Alf Landon, campaigning against FDR and specifically Social Security back in 1936, used to shout to the crowds words to the effect of “Mark my words, those Social Security numbers will follow you from cradle to grave.” Landon was right. Today you might as well have the SS number tattooed on your forehead, along with all other significant “private” data, preferably in some bright hue so the monitoring cameras along highways and intersections can get a clean hit. “Drill baby drill” has been the war cry of the government’s data-mining programs throughout the Bush years, and we can expect no improvement ahead.
Fourth Amendment protections have likewise gone steadily downhill. Warrantless wiretappers had a field day under Bush, and Congress reaffirmed their activities in the FISA bill, for which Obama voted in a turnaround from previous pledges. Incoming vice president Joe Biden can claim a significant role here since he has been an ardent prosecutor of the war on drugs, used since the Harrison Act of 1914and even before then with the different penalties attaching to opium as used by middle class whites or Chineseto enhance the right of police to enter, terrorize, and prosecute at will. Indeed, the war on drugs, revived by President Nixon and pursued vigorously by all subsequent administrations, has been as powerful a rationale for tearing up the Constitution as the subsequent war on terror. It’s like that with all wars. Not far from where I live in northern California, combating narcotics was the excuse for serious inroads in the early 1990s into the Posse Comitatus statutory inhibition on use of the U.S. military in domestic law enforcement, another constitutional abuse whose roots have continued to sink deeper during the Bush years.
In the past eight years, Bush has ravaged the Fourth Amendment with steadfast diligence, starting with his insistence that he could issue arrest warrants if there was reason to believe a noncitizen was implicated in terrorist activity. Seized under this pretext and held within America’s borders or in some secret prison overseas, the captive had no recourse to a court of law. Simultaneously, the “probable cause” standard, theoretically disciplining the state’s innate propensity to search and to seize, has been systematically abused, as have the FBI’s powers under the “material witness” statute to arrest and hold their suspects. Goodbye habeas corpus.
Not only individual liberties but federalism and the rights of states have been relentlessly eroded in the Bush years, often amidst liberal cheers at such excrescences as the No Child Left Behind law. Property rights, too, have suffered great setbacks. Government’s power to seize land under the canons of “eminent domain” received sinister buttress by the Supreme Court in the 2005 Kelo decision.
Have there been any bright patches in the gloom? I salute one: the vindication of the Second Amendment in the Supreme Court’s recent Heller decision, written by Justice Scalia. Liberals would do well to acknowledge the wisdom of that ruling, just as conservatives should recognize the continuity between the outrages they decried under Clinton and the strip-mining of American liberties that has taken place under Bush.
Alexander Cockburn is coeditor of the newsletter and website CounterPunch (counterpunch.org) and has written a biweekly column for The Nation for many years. Next spring CounterPunch Books will publish his A Short History of Fear: The Rise and Fall of Global Warming.